Stopping For Death - Re-Framing Our Perspective On The End of Life

Maurice A.
Deane School of Law at Hofstra University
Scholarly Commons at Hofstra Law

Hofstra Law Faculty Scholarship
2009
Stopping for Death: Re-Framing Our Perspective

on the End of Life
Ruth C. Stern
J. Herbie DiFonzo
Maurice A. Deane School of Law at Hofstra University
Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship

Recommended Citation
Ruth C. Stern and J. Herbie DiFonzo, Stopping for Death: Re-Framing Our Perspective on the End of Life, 20 U. Fla. J.L. & Pub. Pol'y 387
(2009)
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/629
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STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE

ON THE END OF LIFE
Ruth C. Stern & J Herbie DiFonzo*
I. INTRODUCTION
.............................................
388
....... 392
..................
.... 394
.......................
Hope and Meaning.
Hopelessness andDepression Contrasted. ............ 395
II. SUFFERING: COUNTING THE WAYS
A.
B.
III. DECIDING WHEN ENOUGH IS ENOUGH: GOING

VERSUS STAYING
A.
B.
C.
............................
........ 398
...... 399
400
..........404
411
..... 411
.......................
Speaking ofDeath
Doctors and PatientsSpeaking ofDeath
............. 414
IV. DOCTOR-PATIENT DISCOURSES ON DYING
A.
B.
..
Reasons to Stay
........................
Reasons to Go ........................
The Old and the Existential..............
...................
V. LAW, MEDICINE, AND THE ART OF DYING ...................
A.
B.
C.
D.
E.
F.
G.
Law in the Service ofLimitation..................

What is the Matter with Oregon?..........
..............
Promises,Promises:Hospice and PalliativeCare..............
.......
.....................
The Art ofDying
The Cost ofDying
.......................
.....
Planningfor Death
.....................
......
.............
Roles and Responsibilities...............
417
417
423
427
430
431
434
435
Because I could not stopfor Death,

He kindly stoppedfor me;
The carriageheld butjust ourselves
And Immortality.
Emily Dickinson
* Ruth C. Stern, J.D., M.S.W., attorney at law, branwell226@msn.com; J. Herbie
DiFonzo, J.D., Ph.D., Professor of Law, Hofstra University, lawjhd@hofstra.edu. We would
like once again to thank Patricia Kasting, law librarian at Hofstra University, for her devotion to
craft by locating exactly what we wanted and even material we did not know we needed.
1. Emily Dickinson, Because I Could Not Stop for Death, in THE COLLECTED POEMS OF
387
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In what direction do the deadfly off the earth?

Rising sun. A thousandblackbirdspronounce day.
Jim Harrison2
I. INTRODUCTION
"What you call dying is simply the last pain-there is really no such
thing as dying," wrote Ambrose Bierce. 3 The character who utters these
words, Parker Adderson, is a captured Union spy. Claiming indifference
to death's mysteries, he is dismissive of the notion of an interlude
between being and nothingness. He jokes about death; he philosophizes.
Adderson's manner is peculiarly offensive to the Confederate general
who has ordered his execution, a man who finds the very idea of death
to be horrible. With the imminence and actuality of his own demise,
Adderson's wit and flippancy dissolve into stark, cowering terror. In his
fear and panic, he sets off an incident in which the general is gravely
wounded. The execution order stands and, as Adderson is dispatched in
a hail of bullets, the general finds peace, even beauty, in dying.
Adderson's greatest crime, it seems, was not espionage, or even murder,
but his failure to give death its due respect.
A reverence for life "requires that we not debase its final stage.'
Our unique philosophies may color both our conduct and experience in
dying. To Sherwin Nuland, it is how we live our lives that determines
how we die: "Every one of death's diverse appearances is as distinctive
as that singular face we each show the world during the days of life."5
Though the final moments of death are thought to be peaceful, the chore
of getting there often exacts a "fearful price." 6 Chronic and terminal
illness can command intense anguish-of the mind, body and spiritbefore setting free the sufferer. Some choose to avoid the payment in
full, to opt out of the cost of continued existence by hastening their
deaths. Sometimes, physicians assist them in obtaining the lethal drugs
that will finish the ordeal.
In Washington and Oregon, terminally ill, competent adult residents
wishing to die may legally seek medication, to be self-administered, for
EMILY DICKINSON 712 (Thomas H. Jackson ed., 1890).

2. Jim Harrison, Mother Night, in SAVING DAYLIGHT 55 (2006).
3. Ambrose Bierce, ParkerAdderson, Philosopher,in THE CIVIL WAR SHORT STORIES OF
AMBROSE BIERCE 75, 77 (Ernest J. Hopkins ed., 1988). The ensuing plot summary is drawn
from the short story itself
4. Jack D. McCue, The NaturalnessofDying, 273 J. AM. MED. Ass'N 1039, 1039 (1995).
5. SHERWIN B. NULAND, How WE DIE: REFLECTIONS ON LIFE'S FINAL CHAPTER 3 (1993).
6. See id. at 266.
STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OF LIFE
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389
the purpose of ending their lives.7 The U. S. Supreme Court8 and several
state courts9 have rejected claims for a constitutional right to assisted
suicide. In 2009, the Montana Supreme Court, relying on statutory
rather than constitutional criteria, concluded that physician aid in dying
is not against public policy and that doctors who prescribe lethal drugs,
to be self-administered by competent, terminally ill patients, are
immune from state prosecution for homicide. 10 The drive to determine
the timing and manner of our deaths, and to seek a doctor's aid in doing
so is not, however, a strictly contemporary phenomenon. According to
Shai Lavi, the idea of invoking a merciful ending to mortal agony arose
prior to the more organized euthanasia movements of the early
twentieth century." First, however, Americans began to transform the
course of dying from one of "art" to one of "technique."1 2
Art, Lavi explained, has the "power to reveal the fullness of a life
world," as a Gothic cathedral "make[s] visible" man's relationship to
God and the universe. 13 Dying, when "performed as a work of art,"
takes the whole of life's essence and enfolds it within the hour of
death.14 For example, eighteenth and nineteenth century American
Methodists engaged in public deathbed spectacles before an audience of
friends, family, neighbors, the doctor, and the preacher.' 5 All came to
witness the art of dying, a glorious, often boisterous, testament to God's
presence, a triumphant holy death that was "life's fulfillment." 16
Technique, by contrast, is not so much "a certain way of doing things"
as a belief that a process, even a natural one, can be structured and
regulated.1 7 Over time, the doctor replaced the minister as a source of
7. Oregon Death with Dignity Act, OR. REV. STAT. 127.800 (1999); Washington
Death with Dignity Act, WASH. REV. CODE 70.245 (2009).
8. Washington v. Glucksberg, 521 U.S. 702 (1997).
9. See, e.g., Sampson v. Alaska, 31 P.3d 88 (Alaska 2001) (rejecting claim that state
manslaughter statute should not be applied to physician who assists patient in committing
suicide); Krischer v. McIver, 697 So. 2d 97 (Fla. 1997) (upholding state statute criminalizing
assisted suicide).
10. Baxter v. Montana, 224 P.3d 1211, 1222 (Mont. 2009).
11.
SHAi LAVI, THE MODERN ART OF DYING 41-47 (2005). The first attempt to legalize
euthanasia in America occurred in Ohio in 1906. Id. at 93. The bill was drafted by a layperson
who, having witnessed her mother's painful death, lamented that her final agony could not have
been eased by the use of chloroform. Id. The bill died in committee. IAN DOWBIGGIN, A
MERCIFUL END 18 (2003). The American euthanasia movement of the 1920s and 1930s was
tainted by association with the eugenics movement, both proposing to rid society of the
deformed, the handicapped and the socially undesirable. See id. at 47-50.
12. LAVI, supranote 11, at 9-13.
13. Id. at 10.
14. Id.
15. Id. at 39.
16. Id.
17. Id. at 10-11.
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hope and comfort at the deathbed. The dying patient's condition was
now viewed as one that could be medically managed. As the end of life
became increasingly "medicalized," art was subsumed by technique.18
Ambrose Bierce's nineteenth century sensibilities were attuned to
acute rather than chronic causes of mortality. In his day, one was
stricken with pneumonia influenza, or other infectious diseases and
either recovered or died.1 Our current, vastly elongated deaths are due
to chronic illnesses like heart disease, cancer, and Alzheimer's, as well
as to the medical technologies that work to prolong the inevitable. 20 The
drive to hasten death, however, arose long before we developed the
means of protracting it. In America, euthanasia was proposed as a
solution for a hopeless, painful death as early as 1870.2' If medicine
could not provide a cure, it could at least "save the patient from dying
... by bringing his life to an end." 2 2 Euthanasia emerged not as a
response to an excessively medicalized death, but as a medical remedy
for the problem of dying. The story of euthanasia is, essentially, "the
tale of how the art of dying gave birth to the technical mastery of
dying." 2 3
The Washington and Oregon statutes, both born of voter initiatives,
attest to our continuing preoccupation with controlling how and when
we die. Our growing preference for dying at home over "alienating"
hospital settings may signal a yearning to re-infuse art into our final
moments.2 4 Perhaps, by reviving the "deathbed spectacle," enacting our
deaths before loved ones, not strangers, we seek to pay greater homage
to the lives we have lived.2 5 At the very least, we have come to believe
that dying inhabits its own special sphere of care. If nothing else, our
latter-day assisted dying movement has expanded our view of how
chronic and terminal illnesses affect the individual.2 6 We are beginning
to unknot the tangle of physical, psychological, and spiritual suffering
that encumbers the dying and the very ill. We are forced to refine our
understanding of pain and how to treat it. We are compelled to examine
the crises of hope and meaning underlying what is known as existential
distress.
18. Id. at 48-49; Shai Lavi, How Dying Became a 'Life Crisis,' Daedalus, Winter 2008, at
58 [hereinafter Lavi, How Dying Became a Life Crisis].
19. Lavi, How Dying Became a Life Crisis,supra note 18, at 59.
20. Id.; see Ruth C. Stem & J. Herbie DiFonzo, Terminal Ambiguity: Law, Ethics and
Policy in the Assisted Dying Debate, 17 B.U. PUB. INT. L.J. 99, 109-10 (2007) (describing how
futile medical procedures can prolong suffering).
21. LAVI, supra note 11, at 41.
22. Id. at 60.
23. Id. at 12.
24. Id. at 10.
25. Id.
26. See generally Stem & DiFonzo, supra note 20 (analyzing the assisted dying debate).
2009]
STOPPINGFOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OFLIFE
391
For a relative few, despite these better efforts, there is no anodyne

but death. The choice to die is neither hasty nor frivolous but often
made after valiant attempts to co-exist with pain and suffering. Like it
or not, the medical profession is bound up in this enterprise of aid in
dying. With no further grounds to justify the "mind-body dichotomy,"
medicine is being drawn into negotiating the complex universe of
individual suffering.2 7 From easing the anguish of chronic illness to
comprehending and, perhaps, acceding to a patient's wish to die, it is
reasonable and necessary for us to rely on medicine's skills and
expertise. The difficulty is that we have come to demand so much more
than practical knowledge. In the care of the dying, art may well be the
soul of technique.
This Article argues neither for nor against physician aid in dying.
Rather, it reflects upon our growing sensitivity to suffering, and how
this increased knowledge alters expectations of the doctor-patient
relationship. Further, learning more about the nature and impact of
serious illness highlights some of the limitations of our current end of
life laws and policies. The legal parameters for voluntarily ending our
lives are confused and in conflict. Moreover, they have been debated
and enacted amidst a cacophony of rights' talk, discourse about the
permissible extent of governmental authority and the range of
constitutionally-commanded privacy. Indeed, the current clamor
threatens to drown out more subtle yet insistent voices asking that,
before we bestow a right, we thoroughly investigate the nature of the
wrong. But an insufficient amount of scholarly literature has addressed
the conditions at ground zero in the assisted suicide debate: the quality
of life of those near death, as well as their expectations for care and how
a reasonable society might fulfill them.
Following this Introduction, Part II describes the effect of illness and
suffering on the individual. Who we are and how we live can influence
the nature and extent of our distress and our capacity to cope with it.
Suffering is multi-faceted, different aspects of it requiring different
types of interventions. Hopelessness and depression, for instance, both
associated with suicidal thinking, are different both etiologically and
symptomatically. Perceiving their differences is critical to more
accurately understanding and empathizing with those suffering
intensely. Further, a reconsideration of the mind-body dichotomy
requires that we discard the notion of a bright line between physical and
psychological suffering. Therapies aimed at treating one or the other
ignore the classes of distress resulting from the interplay of both. Part
III presents accounts of patients who have chosen to pursue a hastened
death. Their reasons for doing so might surprise those who supposed
27. ERIC J. CASSELL, THE NATURE OF SUFFERING AND THE GOALS OF MEDICINE 34
(1991).
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that unbearable pain is the most common motivator. A combination of

physical suffering, loss of function, and existential issues is often much
more paramount than pain, as is the unique personality of the patient.
In Part IV, we discuss ways in which the medical profession
confronts (or evades) communications about death and dying. Most
doctors are uncomfortable in these discussions, leaving patients feeling
bewildered and alone. The fear of future suffering is one of the most
dominant forces driving the desire to hasten death. Deserting patients
desperately in need of reassurance at this stage belittles their value as
individuals, as well as the integrity of medicine. Part V examines our
existing legislative and judicial frameworks for analyzing and
regulating physician aid in dying. Further, it questions the validity of
concepts like "terminal illness" in devising methods to care for the
dying, and it illustrates that hospice and palliative care, long believed to
be nearly infallible in end of life care, do not benefit all patients. The
Article concludes by suggesting that assisted dying is but one of several
ways to manage our own dying. What is more important is that, in an
era of shrinking health care resources, we may be compelled to revise
the ways in which we think about death.
II. SUFFERING: COUNTING THE WAYS
I look to the time with you to keep me awake and alive.

Peter Gabriel 28
Faith: Beliefwithout evidence in what is told by one who speaks without
knowledge, of things withoutparallel.
Ambrose Bierce 2 9
There are several synonyms for suffering: torment, agony, anguish,
and misery come to mind. But none of these conveys the sheer kinetic
nature of the process, the strenuous, all-consuming work involved. The
word "suffering" connotes an active, ongoing experience, one that is
connected with events such as illness that assault the identity and
"threaten the intactness of person."30 Suffering, said Eric Cassell, is "an
afflicted state of being." 31
28. PETER GABRIEL, In Your Eyes, on SO (Geffen Records 1986).

29. Ambrose Bierce, The Devil's Dictionary, in THE COLLECTED WRITINGS OF AMBROSE
BIERCE 187, 294 (1946) [hereinafter THE COLLECTED WRITINGS].
30. CASSELL, supra note 27, at 33.
31. Eric Cassell, When Suffering PatientsSeek Death, in PHYSICIAN-ASSISTED DYING 76,
76 (Timothy Quill & Margaret Battin eds., 2004) [hereinafter QUILL & BATTIN].
STOPPING FOR DEATH. RE-FRAMING OUR PERSPECTIVE ON THE END OF LIFE
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393
Though physical distress like pain or shortness of breath may give

rise to it, suffering is "distinct from what initiates it." 32 How a set of
symptoms influences one's perception of the future is at the heart of
suffering. Thus, pain is a source of anguish when the patient regards it
as uncontrollable, overwhelming, and never-ending. 33 A prolonged state
of suffering convinces us that we are no longer who we were and
creates a fear that we will never be the same again. 34 Illness alters our
relationship with our bodies, causing us to view them as untrustworthy,
as sources of betrayal, and sometimes, humiliation.3 5 Suffering is
isolating, even shaming, leading us to stifle our complaints in order not
to wear out our caregivers. 36 With increasing loneliness, the sick begin
to "exist at a slight remove from common life," to feel estranged and
disinformed, as though they will be "stumbling around until death." 3 7
Suffering is deeply personal. Balfour Mount, professor of palliative
medicine, explained that "[o]ur patients come to us complaining, not of
disease, but of their subjective experience of illness." 38 A sense of
physical health depends, not on the lack of pain, discomfort, or other
somatic smptoms, but on a form of coping that maintains "selfintegrity." Cassell's depiction of suffering as menacing the "intactness
of person"4 0 points out how destructive of the self the process can be.
One feels "sundered," 4 1 as though one is "coming apart," 42 "falling to
pieces," 43 "breaking,"" and "broken." 45 Suffering shatters our most
basic linkages: "self from self, self from others, self from God.' 4 6
32. Id.
33. Id.
34. CASSELL, supra note 27, at 58; Beverly Rosa Williams, Dying Young, Dying Poor: A
SociologicalExamination of Existential Suffering Among Low-Socioeconomic Status Patients,7
J. PALLIATIVE MED. 27, 28 (2004).
35. CASSELL, supra note 27, at 47; MICHAEL STEIN, THE LONELY PATIENT 160 (2007).
36. STEIN, supra note 35, at 54.

37. Id. at 161. Beverly Rosa Williams described the "social death" of the terminally ill by
noting their inequality in social interactions: "[P]atients are no longer addressed as subjects
whose social position is intact. Instead, they are treated as objects whose personal boundaries
are no longer respected." Williams, supranote 34, at 35.
38. Balfour M. Mount, Existential Suffering and the Determinants of Healing, 10 EuR. J.
PALLIATIVE CARE 40, 40 (2003).
39. Id.
40. CASSELL, supranote 27, at 33.
41. Id. at 54.

42. HELEN BLACK, SOUL PAIN: THE MEANING OF SUFFERING IN LATER LIFE 190 (2006).
43.
44.
45.
46.
Id.
Id.
Id.
Id.
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When patients experience pain, it is "pain as shaped by their

character and biography."A7 A person's lifetime experiences, of doctors,
hospitals, prior illnesses, medications, joys and miseries, triumphs and
failures, all "form the background for illness."AS Aside from its
profound subjectivity, suffering is multi-dimensional, often driving us
to doubt the worth of our beliefs, our dreams, and our very existence.
This malaise of mind and spirit, known as existential suffering,
produces feelings of futility and loss of hope. 4 9 Even in the absence of
physical distress, existential sufferers may grow weary with the process
of living. For the terminally ill who are tired of dying, this draining
away of expectations is often the decisive factor leading to pursuit of
hastened death.
A. Hope and Meaning
Discussing hope in the context of dying seems weirdly incongruous.

But the definition, measurement, and analysis of hope appear regularly
in the literature on terminal illness. Patients and health care providers
acknowledge the therapeutic benefits of hope-in strengthening coping
abilities amidst serious or life-threatening illness, and improving the
quality of life.5 0 Hope is also believed to promote healing as well as
better immune system function and health outcomes.5 Many patients,
having felt themselves blown apart by illness, strive to reintegrate the
various fragments of their being. 52 Hope is, in a sense, the glue that
holds them together as they try to reconnect with their former selves.
Unlike wishing, which stems from a state of want or discontent,
hope draws from personal meaning and acceptance. 53 A "perspective on
reality, a point of view," hope fosters the perception of the glass as half
full rather than half empty. 54 It is "future-oriented and expectant,"
combining "aspects of longing and believing for something that is not
47. G.K. Kimsma, Euthanasiafor Existential Reasons, LAHEY CLINICAL MED. ETHICs J.,
2006, available at http://www.lahey.org/NewsPubs/Publications/Ethics/JournalWinter2006/
JournalWinter2006_Feature.asp.
48. CASSELL, supra note 27, at 38.
49. Gary Rodin et al., Pathways to Distress: The Multiple Determinants of Depression,
Hopelessness and the Desirefor HastenedDeath in Metastatic CancerPatients,68 Soc. Sci. &
MED. 562, 563 (2009).
50. William T. Chimich & Cheryl L. Nekolaichuk, Exploring the Links Between
Depression, Integrity and Hope in the Elderly, 49 CANADIAN J. PSYCHIATRY 428, 429 (2004),
availableat http://wwl.cpa-apc.org:8080/publications/archives/CJP/2004/july/chimich.asp.
51. Id.; see also Mount, supra note 38, at4l.
52. BLACK, supra note 42, at 190.
53. Mount, supra note 38, at 42.

54. Id.
2009]
395
certain but at least possible."55 Hope is manifested in a patient's resolve

to be present for one more Thanksgiving, or to attend a grandchild's
graduation. It can furnish the incentive to bear up under one more day
of suffering "if tomorrow might be different." 56 In short, patients near
death require hope in order to sustain the sense that their lives are
meaningful enough to justify their continuing existence. 57
B. Hopelessness andDepression Contrasted
Studies of morbidly ill patients have helped to clarify the role of

hopelessness in existential suffering. Hopelessness has been identified
as one of several elements in what Kissane and his colleagues called
"demoralization syndrome." 58 Additional criteria include feelings of
helplessness and personal failure, loss of coping motivation, social
isolation, persistence of symptoms for more than two weeks, and no
association with major depression or other psychiatric disorder.5 9
Demoralization and depression are not one and the same, and
hopelessness is the principal feature that distinguishes one from the
other. 60 Rodin et al. defined depression as characterized by "persistent
and pervasive low mood and the loss of interest in normal activities." 6 1
Unlike depressed patients, demoralized patients do not seem prone to
anhedonia, or loss of pleasure, in the present.62 Rather, demoralization
is associated with future, or anticipatory, loss of pleasure. 63
Hopelessness, with its signature "pessimistic cognitive style,"6 4
accounts for the temporal quality of this distinction.
While loss of hope arises from existential concerns, some suggest
depression is more closely linked to the "physical burden" of illness. 65
Somatic issues, such as pain and other physical symptoms, impose
55. Kyriaki Mystakidou et al., Illness-Related Hopelessness in Advanced Cancer:
Influence of Anxiety, Depression, and PreparatoryGrief 23 ARCHIVES PSYCHIATRIC NuRSING
138, 139 (2009).
56. STEIN, supranote 35, at 41.

57. Harvey Max Chochinov, Dying, Dignity, and New Horizons in PalliativeEnd-of-Life
Care,56 CA. CANCER J. CLIN. 84, 90 (2006).
58. David W. Kissane et al., Demoralization Syndrome-A Relevant Psychiatric
Diagnosisfor Palliative Care, 17 J. PALLIATIVE CARE 12, 12 (2001).
59. Craig D. Blinderman & Nathan I. Cherney, Existential Issues Do Not Necessarily
Result in Existential Suffering: Lessons from Cancer Patients in Israel, 19 PALLIATIVE MED.
371, 371 (2005).
60. Id.
61. Rodin et al., supra note 49.
62. Blinderman & Cherney, supra note 59.
63. Id.
64. William Breitbart et al., Depression,Hopelessness and Desirefor Hastened Death in
Terminally Ill Patientswith Cancer,284 J. AM. MED. Ass'N 2907, 2910 (2000).
65. Rodin et al., supra note 49, at 567.
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UNIVERSITY OF FLORIDA JOURNAL OF LA W & PUBLIC POLICY
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"psychological stress" and create risk factors for depression.6 6 Rabkin et

al. reported that depression is more prevalent in cancer patients than in
the general population. 6 7 Among oncologists, however, there is no
consensus in defining and recognizing depression in cancer sufferers.6 8
Somatic symptoms like "fatigue, anorexia, psychomotor slowing, and
insomnia" are common to both cancer and depression. 6 9 For the very ill
and actively dying who are bedridden, dependent on oxygen or
morphine or both, rarely alert or interactive, the "standard criteria for
depressive disorders may not apply." 70
The connection between hopelessness depression, and desire for
hastened death is also subject to dispute." A study by Ganzini et al.
found clinical depression in one of four Oregonians seeking physician
aid in dying. 72 In contrast, studies in other states "suggest that
depression and psychosocial distress areRrominent among patients who
endorse an interest in hastened death." Research by Breitbart et al.
proposed that both depression and hopelessness significantly increase
desire for hastened death.7 4 Some studies concluded that hopelessness
and depression are "mutually reinforcing," 7 5 while others asserted that
hopelessness has a higher correlation with suicidal thinking than
depression.7 6 That the two conditions are "not synonymous" has been
confirmed by Ganzini and her colleagues, who determined that
hopelessness, not depression, was responsible for contemplation of
assisted suicide among patients with Amyotrophic Lateral Sclerosis
(ALS). 7 7
The distinction between hopelessness and depression is also
important because of its implications for voluntariness under the
Washington and Oregon assisted dying statutes. Both statutes forbid the
66. Id.
67. Judith G. Rabkin et al., Depression, Distress and Positive Mood in Late-Stage
Cancer. A Longitudinal Study, 18 PSYCHO-ONCOLOGY 79, 79 (2009).
68. Id. at 80.

69. Id.
70. Id. at 85.
71. Rodin et al., supra note 49.
72. Linda Ganzini et al., Prevalence of Depression and Anxiety in Patients Requesting
Physicians' Aid in Dying: Cross Sectional Survey, 337 BRIT. MED. J. 1682, 1684 (2008),
available at http://www.bmj.com/cgi/content/full/337/oct07_2/al682 [hereinafter Ganzini et al.,
Prevalence of Depression].
73. Id. at 1685. One study, for example, found that 59% of patients who seriously desired
hastened death were depressed. Id.
74. Breitbart et al., supra note 64.
75. Rodin et al., supra note 49, at 567.
76. Chochinov, supranote 57.
77. Linda Ganzini et al., Attitudes of Patients with Amyotrophic Lateral Sclerosis and
Their Care Givers Toward Assisted Suicide, 339 NEw ENG. J. MED. 967, 969-70 (1998)
[hereinafter Ganzini et al., Attitudes ofPatients].
2009]
397
granting of a lethal prescription to patients "suffering from a psychiatric

or psychological disorder or depression causing impaired judgment." 7 8
Hopelessness is a "cognitive style" 79 rather than a form of
psychopathology. Whether it impairs judgment in the manner of a
mental disorder is not at all certain. Further, because hopelessness and
depression appear to operate independently, it seems necessary to
"target these issues selectively."8o Depression may be treated
pharmacologically whereas hopelessness is better addressed by
"cognitive therapies."8 1 These supportive approaches work to alleviate
hopelessness by "encouraging life review to help the patient recognize
purpose, value and meaning; exploring guilt, remorse, forgiveness and
reconciliation; facilitating religious expression; and focusing on
meditative practices that promote healing rather than cure." 82
In formulating intelligent policies and medical strategies for serious
illness, it is essential that we diversify our understanding of how this
condition affects us. Suffering is so varied, and so deeply rooted in
whom we are as individuals, that it defies generalization. Our
assumption, for example, that unbearable pain is the driving force
behind desire for hastened death, is only partially correct.83 Somatic
symptoms, existential concerns, and depression each respond to
different modes of treatment, and all must be addressed as possible
motivators for seeking physician aid in dying. 84
Equating classic notions of suicide with desire for hastened death
may also be misleading.8 5 Is craving an end to suffering truly the same
as the compulsion to obliterate one's present existence? Under the
Oregon and Washington Death with Dignity statutes, actions taken in
accordance with those laws are not construed as suicide or assisted
suicide.86 Our traditional view of suicide evokes images of "tragic self78.
OR. REV. STAT.
127.825 (2007); WASH. REV. CODE 70.245.060 (2009). The
language of both statutory sections is virtually identical.

79. Breitbart et al., supra note 64.
80. Id. at 2911.
81. Ganzini et al., Attitudes ofPatients,supra note 77, at 972.
82. Chochinov, supranote 57, at 97.
83. See, e.g., Oregon Department of Human Services, Public Health Division, Year 112008 Summary, available at http://www.oregon.gov/DHS/ph/pas/arindex.shtml. In a survey of
401 patients from 1998 to 2008 who died in accordance with the Death with Dignity Act, only
23.9% cited inadequate pain control as a major end of life concern.
84. Breitbart et al., supra note 64, at 2911.
85. For rich analyses of suicide and its causes, see generally, A. ALVAREZ, THE SAVAGE
GOD: A STUDY OF SUICIDE (1990); KAY REDFIELD JAMISON, NIGHT FALLS FAST:
UNDERSTANDING SUICIDE (1999); THOMAS JOINER, WHY PEOPLE DIE BY SUICIDE (2005).
86. OR. REV. STAT. 127.880 (2007); WASH. REV. CODE 70.245.180 (2009). Nor, for
that matter, may these actions be considered active euthanasia, mercy killing, or homicide. Id.
Most likely, these constructions are prompted more by liability concerns than metaphysics.
398
UNIVERSITY OFFLORIDA JOURNAL OF LA W & PUBLIC POLICY
[Vol. 20
destruction" impelled by mental instability. 87 But while patients

choosing hastened death appear to want relief, the suicidal seek a kind
of transcendence. Thomas Joiner notes that, based on anecdotal and
case summary evidence, suicidal individuals "view death in a very
peculiar way-namely, that death is somehow life-giving." 8 Pondering
the link between depression and the "embrace of self-extinction,"
Daphne Merkin suggested that "suicide victims don't realize they won't
be coming this way again. If you are depressed enough, it seems to me,
you begin to conceive of death as a cradle, rocking you gently back to a
fresh life, glistening with newness, unsullied by you." 89
Accounts of patients who have opted for physician aid in dying,
presented in the next section, seem somewhat more pragmatic. Rather
than depression, patients in this group are urged on by "a need for selfpreservation," the wish to effect an exit before their identities
disintegrate entirely. 90 Perhaps, in the minds and motivations of the
severely ill, there is a qualitative difference between killing oneself and
letting go of life.
III. DECIDING WHEN ENOUGH IS ENOUGH: GOING VERSUS STAYING
You know what? I'm not going to get any better. I'm done . . . I'm
tired of this; there'sjustno reward.
Anonymous Patient 9 1
Longevity: Uncommon extension of the fear of death.
Ambrose Bierce 92
87. Margaret P. Battin & Timothy E. Quill, The Argument Over Physician-Assisted
Dying, in QUILL & BATTIN, supranote 31, at 2.
88. JOINER, supra note 85, at 86. Hours before his 2004 disappearance into the frigid
water from the Staten Island Ferry, the actor and writer Spalding Gray telephoned his son to tell
him he was "on his way home." Id. at 90. In addition to severe depression, Gray suffered
continuing pain and disability from injuries sustained in a car accident several years earlier. Id.
at 57-58.
89. Daphne Merkin, A Journey Through Darkness, N.Y. TIMES MAG., May 10, 2009, at
35.
90. Margaret P. Battin & Timothy E. Quill, The Argument Over Physician-Assisted
Dying, in QUILL & BATTIN, supra note 31, at 2.
91. Helene Starks et al., Why Now? Timing and Circumstances ofHastened Deaths, 30 J.
PAIN & SYMPTOM MGMT. 220 (2005).
92. Bierce, The Devil's Dictionary,in THE COLLECTED WRITINGS, supra note 29, at 237.
2009]
STOPPING FOR DEATH: RE-FRAMTNG OUR PERSPECTIVE ON THE END OFLIFE
399
A. Reasons to Stay
Depression and hopelessness are not integral to terminal illness, nor
are they inevitable outcomes of the dying process. The majority of
patients in late-stage disease maintain a positive mood and the capacit'
to take pleasure in their lives even in the final weeks before death.
Existential issues do not necessarily give rise to existential distress.9 4 I
a study of culturally and religiously diverse advanced cancer patients in
Israel, Blinderman and Cherney encountered instances of lost
autonomy, issues of body image (e.g., mastectomy, alopecia), guilt,
remorse, and loss of hope and meaning. 5 But their most salient finding
was the relatively low incidence of existential suffering, "despite the
prevalence of existential concerns." 96 For the most part, these patients
had come to terms with past disappointments and current limitations
and had adapted to changing health circumstances.9 7 Death and dying
were sources of preoccupation for only about half of them.98 Existential
troubles, the study concluded, could be alleviated by "a strong
framework of palliative measures, good family support, effective coping
strategies and religious belief systems." 99
The role of religion and spirituality in mitigating existential distress
is, by now, well-recognized. In the very ill, spiritual belief has been
associated with lower anxiety, increased hopefulness, and better quality
of life. 00 One need not have faith in the afterlife or even a specific deity
to achieve spiritual well-being. Creative pursuits, meditation, and
contact with nature are comparable ways to satisfy the yearning for
spiritual purpose and meaning.10 1 Hospice chaplains, mainly
nonsectarian and, therefore, more flexible in their approach to spiritual
counseling, are increasingly in demand.'02 Their job, "to make dying
easier," often involves discussions about "regrets, loneliness, conflicts
unresolved with relatives living and dead; about dogs, movies and
people they loved, the meaning of dreams, the TV show 'Dancing With
93. Breitbart et al., supra note 64, at 2911; Cochinov, supra note 57, at 96; Rabkin et al.,
supranote 67, at 83, 85.
94. Blinderman & Cherney, supra note 59, at 379.
95. Id. at 373-76.
96. Id at 379.
97. Id.
98. Id.
99. Id.
100. Chochinov, supra note 57, at 87-88; Rabkin et al., supranote 67, at 83.
101. Blinderman & Cherney, supra note 59, at 376; Chochinov, supra note 57, at 88.
102. Paul Vitello, Hospice Chaplains Take Up Bedside Counseling, N.Y. TIMES, Oct. 28,
2008, available at http://www.nytimes.com/2008/10/29/nyregion/29hospice.html?scp=1&sq=
hospice%20chaplains%20take%20up%20bedside%20counseling&st-cse.
400
[Vol. 20
the Stars."' 103 The Reverend Kei Okada, visiting a patient in the grip of
terminal cancer and hopelessness, described the patient's hardest task as
"letting go of this cerebral concept of meaninglessness, of
nothingness." 0 4
Extreme reliance on religious coping, however, can have less
desirable consequences. A study by Phelps et al. reports a greater
preference for aggressive therapies, ventilation, and resuscitation among
religious copers, even in cases of medical futility.105 Religious copers
are less likely to appreciate or understand the meaning of do-notresuscitate orders, and are likely to regard them as "morally wrong."l 0 6
The hope for a miracle through God's healing can create "unrealistically
optimistic expectations of survival." 07 Or, as in the case of the Israeli
patients discussed above, spirituality can be a balm to fear and
loneliness.108
B. Reasons to Go
The subjectivity of suffering may generate less than predictable

responses to illness, but it also inspires admirable displays of resilience
and fortitude. Shows of uncommon strength are not exclusive to stories
of survival. They are also seen in patients who ultimately elect to hasten
their deaths.
There are times when even the most accommodating sufferers can
endure no more pain, no further losses of function, and no additional
insults to their bodily and personal integrity. Despite receiving good
palliative care, and regardless of prognosis, these patients arrive at a
point where they are "ready to end the struggle with their illness." 09 In
some cases, the decision to procure life-ending medications is made
well before the final act. Anticipatory fear and negative expectations of
the future can matter more than one's current state of suffering. 110
Indeed, several clinicians in Oregon "have expressed surprise at the
paucity of suffering at the time of the request [for lethal medications]
among these patients.""' Severe, uncontrolled pain is one of the most
103. Id.
104. Id.
105. Andrea Phelps et al., Religious Coping and Use of Intensive Life-Prolonging Care
Near Death in Patientswith Advanced Cancer, 301 J. AM. MED. Ass'N 1140, 1145 (2009).
106. Id.
107. Id. at 1146.
108. Blinderman & Cherney, supra note 59, at 379.
109. Starks et al., supra note 91, at 219.
110. Ganzini et al., Attitudes ofPatients,supra note 77, at 971.
111. Ganzini et al., Why Oregon PatientsRequest Assisted Death: Family Members' Views,
23 J. GEN. INTERNAL MED. 154, 156 (2007) [hereinafter Ganzini et al., Why Oregon Patients
Request Assisted Death].
2009]
401
feared aspects of cancer and a major impetus for contemplating aid in

dying.11 2 It is not at all unusual for patients to "dread dying more than
they fear death." 1 l 3 Even some of Blinderman and Cherney's fairly
serene patien t group worried about the ordeal of dying, "but not about
death itself."""-
Patients who are troubled by prospective suffering and incapacitation

derive a sense of comfort in knowing that, if need be, they possess the
means to peacefully end their lives. A study of Oregon patients seeking
aid in dying found that those who had received prescriptions for lethal
drugs actually had "a lower desire to die and a trend toward lower
hopelessness scores." 115 Writing about her father who shot himself in
the later stages of cancer, Marcia Angell asserted that, had he had the
option of future assistance in dying, he might have chosen to live
longer.116 Another patient, diagnosed with metastatic ovarian cancer,
felt relieved and strengthened by having procured the means to hasten
her death: "I felt I had more energy . .. to live in the present time. It just
took a big weight off my shoulders somehow, knowing at least that that
was one thing that maybe I didn't have to worry about."11 7 Three years
went by before this patient made use of her prescribed lethal
medication.118
Implicit in the urge to avoid future suffering is the desire to exert
control, to manage the dying process by choosing the time and location
of one's death. 9 During the course of illness, patients learn to
distinguish between acceptable and unacceptable losses, and to plumb
the delicate balance between "not letting go too soon and not hanging
on too long." 120 A common concern among AIDS patients is the need to
preserve some vestige of the self, to halt the body's deterioration and
"minimize the damage."' 2 1 Akin to the desire for control is dread of
losing one's independence. For many patients who pursue a hastened
death, the fear or sense of becoming a burden is "almost universal."1 22
Though patients do adapt to them, functional losses can mount up
and, finally, become unendurable. For a formerly fastidious dying
112.
113.
114.
115.
116.
117.
Rodin et al., supranote 49, at 564.

Marcia Angell, The Quality ofMercy, in QUILL & BATTIN, supra note 31, at 22.
Blinderman & Cherney, supra note 59, at 378.
Ganzini et al., Prevalence ofDepression,supranote 72.
Angell, The Qualityof Mercy, in QUILL & BATTIN, supra note 31, at 21.
Robert A. Pearlman et al., Motivations for Physician-Assisted Suicide, 20 J. GEN.
INTERNAL MED. 234, 237 (2005).
118. Id.
119. See Starks et al., supra note 91, at 216, 218-19; see also Ganzini et al., Why Oregon
PatientsRequest AssistedDeath, supranote 111, at 155.
121. Pearlman et al., supranote 117, at 238.
122. Chochinov, supranote 57, at 91.
402
[Vol. 20
woman, the onset of incontinence turned her quality of life

"appalling."l23 For another terminally ill patient, whose daily drink of
Gatorade was his only remaining pleasure, the final, insuportable loss
occurred when he could no longer orally take in fluids. Inability to
engage in the work and activities that define us as individuals erodes
our identities and sense of purpose. The feeling of having been evicted
from a rightful place in one's own life leaves little cause for staying on.
Helene Starks and her colleagues conducted a series of revealing
interviews with the families of thirty-five Washington and Oregon
patients who hastened their deaths. 125 All of the patients were white and
had been medically insured, with a mean age of sixty-eight and with a
majority having received palliative care either through hospice or home
care. 126 Two-thirds of the patients had viewed religion or spirituality as
important and felt that their wish to die was not inconsistent with their
spiritual or religious beliefs. 12 7 On average, the patients had been living
with their illness for 2.5 years and had been actively engaged in
128
planning their deaths for 3 months.
The timing of these patients' deaths said as much about their criteria
for weighing the "benefits and burdens of living versus dying" 29 as it
did about their medical conditions. Physical and existential events may
occur at critical points in chronic or terminal illness and trigger the
desire to die.130 Among the patients studied, those with prognoses of
hours to seven days had worked heroically to keep on living erhaps
Their
because of reasons to remain alive until the chosen time.'
sustaining a final loss (e.g., the onset of constant vomiting, continuous
diarrhea, uncontrollable rectal bleeding) convinced them that death had
become unavoidable.1 32 Their choice to short-circuit the dying process
was their way of ensuring a peaceful death.13 3 For patients with
prognoses of one to four weeks, death was not imminent but certainly "a
matter of time."' 34 Having experienced multiple losses and exhausted
124. Id. at 236-37.
125. Starks et al., supra note 91, at 215. Those who had agreed to participate in the study
were contacted through physician-assisted suicide advocacy groups like Compassion in Dying,
the Hemlock Society, and hospice agencies. Id. at 216. At the time of the study, physician aid in
dying had not yet been legalized in Washington.
126. Id. at 218.
127. Id.
128. Id. at 218-19.
129. Pearlman et al., supra note 117, at 238.
130. Id
131. Starks et al., supra note 91, at 220-21.
132. Id. at 220.
133. Id.
134. Id. at 221-22.
2009]
403
their treatment options, these patients were "simply waiting it out."l35

Explaining his mother's decision to hasten her death at that time, one
man said, "So what it gets to is [that] the good days aren't worth what
the bad days cost you." 6
Patients with one to six months of life remaining had already
endured significant functional losses and anticipated even greater
ones.1 37 Not only did they foresee a looming threat to their quality of
life, they feared losing the ability to hasten their own deaths. 13 8 One
man with multiple sclerosis (MS), a disease with an "uncertain
timeline," wanted to ingest the lethal medications before he lost his
ability to swallow.1 39
Patients with prognoses of more than six months had chronic
illnesses that became terminal only if they stopped palliative therapy
and allowed the disease to proceed on its own. 140 One woman, in
constant pain from a congenital malformation of the spine, felt as
though she was in "an invisible prison," and that it was getting worse. 14 1
Another patient had chronic lung disease treated by steroids that so
impaired her immune system she was constantly plagued by
infections.142 A third patient suffered from progressive paraplegia and
profound itching caused by an autoimmune disease.14 Her favorite
activities, cooking and painting, were now off-limits to her, and she
could face neither the continued pain and disability nor the side-effects
of her medications.144
Although in general even severe pain can be controlled by
medication, some patients reject the physical and mental limitations
imposed by heavy use of such drugs. In particular, they are concerned
about the "unacceptable, mind-altering effects of pain medications." 4 5
The first person to ingest lethal drugs under Washington's assisted
dying law was sixty-six year-old Linda Fleming, "actively dying" of
135. Id. at 222.
136. Id.
137. Id
138. Id.
139. Id.
140. Id.
141. Id.
142. Id.
143. Id. at 223.
144. Id.
145. Pearlman et al., supra note 117, at 236. See also Colin Fernandes, Coming to Know
the Limits of Healing, N.Y. TIMES, Sept. 18, 2009 (discussing other side-effects of opioids.
These may include "chronic constipation, sedation and somnolence, a worsening of mood,
opioid-induced hyperalgesia (a paradoxical phenomenon in which pain medications actually
increase pain), hypogonadism (impaired endocrine function) and addiction. Recent studies also
suggest an adverse effect on immune function.").
404
UNIVERSITY OFFLORIDA JOURNAL OFLAW & PUBLIC POLICY
[Vol. 20
In a statement released by the aid in dying

pancreatic cancer.
advocacy group, Compassion & Choices, Ms. Fleming explained, "I am
a very spiritual person, and it was very important to me to be conscious,
clear-minded and alert at the time of my death. The powerful pain
medications were making it difficult to maintain the state of mind I
wanted to have at my death."1 47
The resolve to exercise some mastery over the dying process is the
common thread that runs through these accounts. Some patients will
delay ingesting lethal drugs to celebrate holidays or special family
occasions.148 Some will arrange an event at which to say their last
goodbyes.1 4 9 Others seem to slip their bonds more quietly, even
furtively, as though they were being called away.
C. The Old and the Existential
The very old often die from what we term 'natural causes.' Death
occurs in the absence of acute or chronic illness, or of any "fatal
condition that could reasonably explain" their steep decline. 50
eighty-seven year-old woman, "paralyzed, incontinent and unable to
speak," with a catalogue of non-fatal ailments and miseries may yet be
viewed as not "dying of anything."151 Still, like many in her condition,
she may simply lose interest in eating and drinking, and, over a period
of days or weeks, pass away. 152 It is interesting to note that, in persons
of advanced age, weight is a highly "consistent independent predictor of
longevity." 15 3
146. William Yardley, In Washington, First Death Using Assisted Suicide Law, N.Y.
TIMES, May 23, 2009, at Al0.
147. Id. Compassion & Choices is a national non-profit organization that advocates for
legalization of physician assisted dying and offers guidance on end of life options. Compassion
& Choices, http://www.compassionandchoices.org/leam (last visited Dec. 18, 2009). The
organization refers terminally ill, mentally competent patients to hospice, social services
agencies and specialists in management of pain and existential suffering. Id. When "that isn't
enough," counselors "inform clients how to acquire the means to control the circumstances and
timing of their own deaths." Jane Gross, End-of-Life Choices: A View From the Front Lines,
N.Y. TIMES, Dec. 11, 2008, at http://newoldage.blogs.nytimes.com/2008/12/11/end-of-lifechoices-a-view-from-the-front-lines/?scp=l&sq=jane%20gross%20end%20 of/201ife%20choic
es%20a%20view%20from%20the%20front%201ines&st-cse.
149. Id.
150. McCue, supra note 4, at 1040.
151. Jane Gross, What an End-of-Life Adviser Could Have Told Me, N.Y. TIMES, Dec. 15,
2008, available at http://newoldage.blogs.nytimes.com/2008/12/15/what-an-end-of-life-advisorcould-have-told-me.
152. McCue, supra note 4, at 1040; Gross, supra note 151.
153. McCue, supranote 4, at 1040.
2009]1
STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVEON THE END OFLIFE
405
The act of foregoing food and fluids in the elderly may be due to
degenerative neurological disorders or aging of the brain. 14 Or the
cause may be rooted in major depression, believed to afflict up to thirty
percent of people aged sixty-five and older. 15 5 Another possibility is that
elderly people with no identifiable disease or injury, who no longer
wish to eat, drink, or care for themselves, have suffered "the loss of a
will to live." 5 6 Clinical depression is especially common among
elderly, long-term residents of institutions like hospitals and nursing
homes.15 7 The diagnosis is complicated, however, by the fact that
elderly persons may be saddened by the "many real personal and social
losses"1 they have sustained. Sorrow and loss of interest in living may
also signal "preparation for dying"1 59 rather than a mental disorder.
The ri ht to refuse food and fluids is recognized by most state
statutes.16 Some patients may experience a degree of pain and suffering
in the process, which can be ameliorated by appropriate palliative
care. 16 1 In Oregon, where physician-assisted dying is legal, almost twice
the number of hospice patients hastened death by voluntarily stopping
food and fluids than by assisted suicide. 16 2 Patients who chose to stop
eating and drinking were, on average, older than the assisted suicide
patients, less likely to have cancer, and more likely to have a terminal
neurological disease such as ALS, which might have prevented them
from ingesting lethal medications on their own.16 3 Unbearable physical
suffering did not appear to be an important reason for refusing food and
fluids, and the desire to control the circumstances of death seemed
somewhat greater in assisted suicide patients.1 64 Preferring one means
over the other was thought to "depend on the importance placed on
control, access to a physician who will prescribe lethal medication,
other beliefs, and family views."' 6 5 For those who stopped eating and
drinking, death usually occurred within fifteen days, these last weeks of
Id.
Chimich & Nekolaichuk, supra note 50.
McCue, supra note 4, at 1039.
Chimich & Nekolaichuk, supra note 50; McCue, supra note 4, at 1040.
McCue, supra note 4, at 1040.
Rabkin et al., supranote 67, at 85.
Bernard Gert et al., An Alternative to Physician-Assisted Suicide, in PHYsIcIAN
ASSISTED SUICIDE: EXPANDING THE DEBATE 194 (Margaret P. Battin et al. eds., 1998).
161. Id. at 190.
162. Linda Ganzini et al., Nurses' Experiences with Hospice Patients Who Refuse Food
and Fluids to Hasten Death, 349 NEW ENG. J. MED. 359, 363 (2003), available at http://content.
nejm.org/cgi/content/full/349/4/359.
163. Id. at 364.
164. Id. at 363-64.
165. Id. at 364.
154.
155.
156.
157.
158.
159.
160.
406
[Vol. 20
life generally rated by nurses as "peaceful, with low levels of pain and
suffering."
Most patients who voluntarily forego food and fluids believe they
are ready to die, that continued existence is pointless, and that their
quality of life is poor.167 The spiritual and psychological side of a
dwindling interest in life recalls the role of existential suffering in the
desire to hasten death. Suffering, in and of itself, is highly idiosyncratic.
When it stems from largely existential issues, it is even more subjective
and, as a basis to pursue aid in dying, even more controversial. 168
In July 2008, German citizens and lawmakers expressed outrage at
the death of seventy-nine year-old Bettina Schardt.169 A retired X-ray
technician who lived alone, and who had no family and few friends,
Schardt was neither in acute pain nor suffering from life-threatening
illness.170 She did have some trouble moving around her apartment and,
with no social supports, her eventual placement in a nursing home
appeared inevitable. What made this prospect especially unbearable to
Schardt was her fear of strangers and her "low tolerance for those less
clever than she was."' 7 ' With the aid of Roger Kusch, a well-known
German crusader for assisted suicide and a sort of Teutonic Jack
Kevorkian,172 Schardt consumed a deadly brew of medications and
ended her life.173
In Germany and Switzerland, assisted suicide is not a crime if the
accomplice is not acting out of self-interest. 174 In the Netherlands and
Belgium, voluntary assisted euthanasia, as well as physician-assisted
suicide, is practiced legally.175 After the death of Schardt, German
166. Id. at 362.
167. Id. Loss of appetite also occurs in some patients who are approaching death.
168. Mark Lander, Assisted Suicide of Healthy 79 Year-Old Renews German Debate on
Right to Die, N.Y. TIMES, July 3, 2008.
169. Id
170. Id.
171. Id.
172. Id. Kevorkian was an assisted suicide zealot from Michigan who, without legal
authority, performed euthanasia. He admitted to helping more than 130 people die. In 1999,
Kevorkian was convicted of second-degree murder in Michigan and sentenced to ten to twentyfive years in prison. "He was released in 2007, having agreed as a condition of parole not to
participate in future suicides." Stem & DiFonzo, supranote 20, at 120 n.206.
173. Lander, supra note 168.
174. Kimsma, supra note 47. Swiss law requires a medical consultation and informed
consent on the part of the participant. See Christel Kucharz, Assisted Suicide Provokes Outcry in
Germany, ABC NEWS, July 4, 2008, availableat http://abcnews.go.com/International/story?id=
5309791&page=l.
175. Kimsma, supra note 47. See VICTORIA HILEY, IN PURSUIT OF A GOOD DEATH:
RESPONDING TO CHANGING SENSIBILITIES INTHE CONTEXT OF THE RIGHT TO DIE DEBATE 175-224
(Jan. 2008) (Doctoral Thesis, Univ. of Sydney) (describing assisted euthanasia and physicianassisted suicide in the Netherlands), available at http://ses.library.usyd.edu.au/bitstream/2123/
2009]
STOPPINGFOR DEATH RE-FRAM7NG OUR PERSPECTIVE ON THE END OFLIFE
407
Chancellor Angela Merkel declared her opposition to all forms of

assisted suicide and called for "strict legislation." 17 6 Eugen Brysch,
director of the German Hospice Foundation, averred that shoddy
treatment of the aging was the real concern in need of confrontation:
"The fear of nursing homes among elderly Germans is far greater than
the fear of terrorism or the fear of losing your job."177 For a largely
European market, a Swiss euthanasia group, Dignitas, offers death with
dignity to the terminally ill by means of lethal medication.17 1 In the last
ten years, 500 Europeans have crossed the Swiss border in search of
assistance in ending their lives. 179 Many Germans were among them.18 0
Dignitas figured prominently in the death of Sir Edward Downes,
distinuished British orchestra conductor, and his wife of fifty-four
Downes, eighty-five, suffered from increasing blindness and
years.
deafness but no terminal illness.182 His wife, seventy-four, was in the
last stages of terminal cancer.183 Together with their children, the couple
journeyed to Zurich where, aided by Dignitas, Lord and Lady Downes
consumed a lethal concoction and, holding hands, lay down side by
side, dying within ten minutes. 184 "It is a very civilized way to end your
life," said their son, "and I don't understand why the legal position in
this country doesn't allow it."' 8 5 Friends of Edward Downes described
him as "completely rational," 86 and termed the couple's death
"typically brave and courageous." 1 8 7 Others were discomfited by the
fact that Downes was not imminently dying at the time of his
decision. In Britain, Sir Edward's case was one of a known few in
which a non-terminally ill spouse had chosen to die with one who
was. 189
As of July 2009, 117 Britons had traveled to Dignitas' Zurich-based
clinic for help in ending their lives. 190 None of the friends and relatives
accompanying them has been prosecuted. Still, after the deaths of Lord
2611/2/Thesis%20V%2OHiley/ 020In%2OPursuit%2of/2Oa%2oGood%2oDeath.pdf.
176. Kucharz, supra note 174.
177. Lander, supra note 168.
178. Id.
179. Id.
180. Kucharz, supranote 174.
181. John F. Bums, With Help, Conductor and Wife Ended Lives, N.Y. TIMES, July 15,
2009, available athttp://www.nytimes.com/2009/07/15/world/europe/15britain.html.
182. Id.
183. Id.
184. Id.
185. Id. (quoting Caractacus Downes).
186. Id. (quoting Richard Wigley).
187. Id. (quoting Jonathan Graves).
188. Id.
189. Id.
190. Id.
408
[Vol. 20
and Lady Downes, even the chief executive of Britain's Dignity in

Dying pressed for limitations on travel abroad for purposes of seeking
aid in dying.' 9' In July 2009, a bill to allow people to travel abroad in
furtherance of assisting others to die, subject to certain safeguards, was
defeated in the House of Lords. 192 In that same month, the British
Medical Association voted against legalization of physician aid in
dying. 193
In Britain, assisting a suicide remains a criminal offense.19 4 But even
more unnerving than the threat of prosecution was the uncertainty
regarding standards under which one might be criminally liable for
assisting a suicide. Debbie Purdy, age forty-six, had primary
progressive multiple sclerosis.'95 If she chose to end her life, she wanted
to know whether her husband would be prosecuted for accompanying
her to Dignitas.19 6 She brought her case to the House of Lords and, in
July 2009, won a groundbreaking victory.' 97 Ruling that "the current
lack of clarity is a violation of the right to a private and family life," 98
the House of Lords ordered the Director of Public Prosecutions to issue
guidelines governing criminal proceedings against assisted suicide. The
resulting Interim Policy for Prosecutors in respect of Cases of Assisted
Suicide appeared in September 2009.199 To aid in the decision-making
process involving prosecution of assisted suicide, the policy proposes a
list of factors to be considered. Among them are the age (whether over
eighteen), capacity and the express wishes of the person seeking
assisted death as well as whether he or she has a terminal illness, a
severe and incurable disability or a severe degenerative physical
200
condition.
Prosecutors must also examine the type of relationship
between persons seeking and providing assistance in dying (e.g.,
whether they are family members or close friends), the motivation for
191. Id.
192. Id.
193. Id.
194. Id.; see HILEY, supra note 175, at 7-10 (describing the British legal approach).
195. Afia Hirsch, Debbie Purdy Wins 'Significant Legal Victory' on Assisted Suicide,
guardian.co.uk, July 30, 2009, available at http://www.guardian.co.uk/society/2009/
jul/30/debbie-purdy-assisted-suicide-legal-victory.
196. Id.
197. Id.
198. Id.
199. The Crown Prosecution Service, Interim Policy for Prosecutors in respect of Cases of
Assisted Suicide,
19, (1)-(16), available at http://www.cps.gov.uk/consultations/aspolicy.
html.
200. Id.
2009]1
STOPPING FOR DEATH RE-FRAMING OUR PERSPECTIVEON THE END OFLIFE
409
20 1
providing such assistance, and the prospect of coercion. 2 02The
guidelines are silent as to the role of physicians in assisted suicide.
Great Britain's Interim Policy is notable for including severe,
incurable disability and degenerative physical condition in addition to
terminal illness. In the Netherlands, with its far more liberal outlook on
hastening death, requests by those not terminally ill are not uncommon,
if not quite universally condoned. In 2001, a Dutch court of appeal set
aside the acquittal of Dr. Philip Sutorius, a physician accused of helping
a patient with no serious physical illness to die.2 0 3 The patient, an
eighty-nine-year-old former member of the Upper House of Parliament,
was "obsessed with his physical decline and hopeless existence " and
had told Dr. Sutorius of his wish to die on multiple occasions. 04 Dr.
Sutorius was found guilty but no punishment was imposed, recognizing
that he had acted out of great concern for his patient, with prudence and
professionalism, and that he had freely reported the incident. 205 Whether
his conduct was legally defensible depended on the court's
determination as to whether doctors possess the expertise to judge such
matters of existential suffering. 20 6 The court, relying on expert opinion,
concluded that they do not and that Dr. Sutorius should have referred
the patient to a therapist. 07 The Royal Dutch Medical Association
agreed with the judgment in drawing a line for physicians in terms of
treatment of physical and mental suffering, but it maintained that
medicine's role in regard to existential suffering was still uncertain.2 0 8
Dr. Sutorius appealed to the Supreme Court of the Netherlands, which
201. Id.
202. Id On February 25, 2010, Keir Starmer, Britain's Director of Public Prosecutions,
issued new guidelines for bringing criminal charges in matters of assisted suicide. Starmer
called for the exercise of discretion in evaluating individual cases. In addition to the factors
discussed in the text above, prosecutors must give special emphasis to the motive of the suspect,
determining whether he was acting entirely out of compassion or with malicious intent. Gregory
Katz, Assisted Suicide Guidelines in the UK, Feb. 25, 2010, available at http://www.cbsnews.
com/stories/2010/02/25/health/main6242846.shtml. In accordance with these new guidelines,
Starmer declined to bring charges against Caractacus Downes, son of Lord and Lady Downes,
for accompanying his parents to the Zurich clinic where they ended their lives. Terming Lord
and Lady Downes' decision "voluntary, clear, settled and informed," Starmer further found the
actions of Caracterus Downes to have been "wholly motivated by compassion." David Brown,
Children of Sir Edward Downes Will not be Charged Over His Suicide, Mar. 20, 2010,
available at http://www.timesonline.co.uk/tol/news/uk/crime/article 7069252.ece (quoting Keir
Starmer).
203. Tony Sheldon, "Existential"Suffering Not a Justificationfor Euthanasia,323 (7326)
BRIT. MED. J. 1384 (2001), available at http://www.pubmedcentral.nih.gov/articlerender.
fcgi?artid=1 121852 [hereinafter Sheldon, "Existential"Suffering].
204. Id.
205. Id.
206. Id.
207. See HILEY, supranote 175, at 194.
208. Sheldon, "Existential"Suffering, supra note 203.
410
[Vol. 20
affirmed the conviction, holding that there must be a medical condition

leading the patient to experience unbearable suffering. 20 9
In a 2005 survey in the Netherlands, doctors reported receiving
about 400 assisted dying requests a year for primarily existential
reasons.210 Most of these solicitations came from elderly patients with
ailments but no acute or chronic illnesses, almost all of whom have lost
a spouse or who are single and socially isolated. 2 1 1 About three percent
of the physicians surveyed complied with these requests. 2 1 G.K.
Kimsma, a Dutch physician, regarded euthanasia for existential
suffering 2philosophically understandable but beyond the reach of
medicine. Nevertheless, although he would not actively assist such a
patient himself, he would counsel the patient on the use of sleeping pills
and a plastic bag to aid in suffocation.2 1 4 Without explicitly endorsing
the patient's decision, Dr. Kimsma would consider it his "professional
duty as a family physician to help and support the patient during the
process, and the family afterwards."2 15
In the United States, such open-mindedness and candor on the part
of doctors is rare, even in Oregon and Washington, and even in cases
with far more objective indicia of suffering. The existential plight of
those not "dying of anything" 216 is troubling and, at present, probably
too fraught with subjectivity to invite many broadly acceptable medical
and policy solutions. It is crucial, however, to recognize the existential
dynamic in all suffering, especially in elderly patients dealing with loss,
loneliness and increasing frailty.
Most physicians do not concern themselves with the care of dying
patients and, historically, have been reluctant to do so. 2 17 Perhaps, as the
sociologists hypothesize, doctors have an inordinate fear of death. 2 18 For
whatever reason, death and medicine do not sit well together. If doctors
209. See Tony Sheldon, Being "Tired of Life" Is Not Groundsfor Euthanasia,326 (7380)
BRIT. MED. J. 71 (2003), available at http://www.pubmedcentral.nih.gov/articlerender.fcgi?
blobtype=html&pubmedid=12521966; HILEY, supra note 175, at 194-95. The continuing
complexity of this issue may be seen in the Royal Dutch Medical Association inquiry launched
in 2002 into whether physicians should be allowed to help patients die if they are neither
terminally ill nor suffering from a psychiatric illness but are rather "suffering through living."
Id. at 201. The resulting 2005 Report concluded that these cases of existential suffering are
indeed within a physician's area of competence. Id.
210. Kimsma, supra note 47.
211. Id.
212. Id.
213.
214.
215.
216.
217.
218.
Id.
Id.
Id.
Gross, supra note 147.
McCue, supra note 4.
Id. at 1041.
2009]
411
are disinclined to ponder the subject of dying, they are even less
disposed to discuss it openly with their patients.
IV. DOCTOR-PATIENT DISCOURSES ON DYING
"Who taughtyou all this, Doctor?"

The reply came promptly: "Suffering"
Albert Camus. 2
Physician: One upon whom we set our hopes when ill and our dogs
when well.
Ambrose Bierce 22 0
A. Speaking ofDeath
When, in the nineteenth century, the doctor dislodged the preacher at

the deathbed, a paradox was born. The growing primacy of medical
technique had created "the categorical imperative to minister hope ...
irrespective of the fact that the patient was hopelessly dying." 22 ' To this
paradox we owe, at least in part, a legacy of aggressive and often futile
medical procedures for the dying, such as ventilation, resuscitation, and
the drawing of our final breaths amidst the beeping and blinking of
machinery in sterile hospital rooms and intensive care units. It is all too
easy to blame the doctors and not our boundless appetite for miracles.
But even the profession's eminent own have remarked upon the
torments caused in the name of treatment and the fact that "the relief of
suffering . . . is considered one of the primary ends of medicine by
patients and the general public, but not by the medical profession." 222
The practice of holding out hope to the hopeless gave little
instruction in dealing with those who were clearly beyond help. Until
the end of the twentieth century, medical students were basically
unschooled in end of life processes.2 2 3 Patients near death were
studiously avoided on morning rounds, isolated as symbols of shameful
medical failure.2 2 4 Pain in the dying was grossly, even callously,
undertreated, with medications given "in doses too small and too far
apart." 225 The growth of the hospice movement contributed to better
219. ALBERT CAMUS, THE PLAGUE 128-29 (Stuart Gilbert ed., 1948).
220. BIERCE, THE COLLECTED WRITINGS, supra note 29, at 325.
221. LAVI, supra note 11, at 56.

222. CASSELL, supranote 27, at 32.
223. See Marcia Angell, The Quality ofMercy, in QUILL & BATTIN, supranote 31, at 16.
224. Id
225. Id.
412
[Vol. 20
pain relief and the rise of palliative care as a medical specialty.2 2 6

Lessons learned from the Oregon assisted dying experience also
promoted greater awareness and sensitivity regarding end of life
matters.227 Yet, for many doctors, discussing death with their severely
ill patients remains difficult and disconcerting.
In a study of conversations between eight different oncologists and a
role-playig "dying" woman, only one doctor even uttered the word
There are a number of reasons why doctors avoid specific
"death.'
use of terms like "death" and "dying" in speaking with patients. 2 They
do not wish to cause distress to the patient or face their own unease at
dealing with a patient who has just received a dire prognosis. 2 30 Doctors
who have developed long-term, close relationships with patients may
have trouble dealing with their own sense of grief and loss.231 Further,
both patients and doctors may view mention of death as "an admission
of failure or of giving up." 232
Patients who are told they have a terminal or chronic illness feel
"trapped between reality and possibility." 23 3 Euphemisms might cushion
Deciding
the blow of bad news, but they also mislead and confuse.
when and if to invoke the "language of hope" is "excruciatingly
difficult," mainly because doctors are uncertain about prognosticating
and mindful of how often they are wrong.2 3 5 Couching discussions in
terms bleaker than necessary creates "false hopelessness," believed to
be even more debilitating than false hope. 23 6 On the other hand, the
cultivation of false hope may induce patients to try "last-ditch" and
"unproven" therapies that are financially and emotionally depleting.2 37
A "terrified patient and well-intended doctor" may so fervently desire a
good outcome that "what emerges is a collective denial about the
patient's condition." 238
In 2010, the journal Cancer published the results of a large,
multiregional study examining the timing of doctor-patient end of life
226. Id. at 19.
227. Cassell, When Suffering Patients Seek Death, in QUILL & BATFIN, supra note 31,
at 87.
228. Scott Berry, Just Say Die, 26 J. CLINICAL ONCOLOGY 157, 157 (2008).
229. Id.
230. Id. at 158.
231. Id.
232. Id.
233. Jan Hoffman, Doctors'DelicateBalance in Keeping Hope Alive, N.Y. TIMES, Dec. 24,
2005, at Al, availableat http://www.nytimes.com/2005/12/24/health/24patient.html.
234. Berry, supranote 228, at 158.
235. Hoffman, supra note 233.
236. Id.
237. Id.
238. Id.
2009]
STOPPINGFOR DEATH RE-FRAMING OUR PERSPECTIVEON THE END OF LIFE
413
discussions. 239The research showed that many doctors delay discussing

end of life options with terminally ill patients who are still feeling well,
"and instead wait for the onset of symptoms or until there are no more
nonpalliative treatments to offer." 2 0 Younger physicians, perhaps due
to greater emphasis on palliative care in medical training, are more
likely to discuss end of life choices with their patients than older
physicians.241 The authors caution that "discussions of prognosis are not
synonymous with advance care planning," 242 and may as readily be
viewed by doctors as an opportunity to discuss potential treatments. 2 4 3
Excessive treatment such as chemotherapy, even for cancers generally
seen as unresponsive to such measures, causes further and unnecessary
delay in end of life discussions. 2 44 Dr. Nancy Keating, the study's lead
author, explained, "These conversations are time-consuming and
difficult. Some doctors may feel patients will lose hope. It's easier to
say, 'Let's try another round of chemotherapy,' instead of having a
heart-to-heart discussion." 245
As stressful as such conversations are, doctors may find consolation
in knowing how beneficial a realistic end of life discussion with a
patient can be. A study by Wright et al. concluded that discussing end of
life issues with their doctors helped patients accept their illnesses as
terminal, leading them to forego aggressive, often harmful, lifeextendin interventions and choose hospice and palliative care
instead. Patients who did not engage in these discussions opted for
more aggressive medical treatments and delayed their entry into hospice
care as late as one week before death, thus worsening the quality of life
remaining.2 4 7
239. Nancy L. Keating et al., Physician FactorsAssociated with DiscussionsAbout End of

Life Care, CANCER, EARLY VIEw, available at http://www3.interscience.wiley.com/journal/
123237834/abstract?CRETRY=1& SRETRY=0 (last visited Mar. 11, 2010).
240. Id. at 6.
241. Id. at 7.
242. Id.
243. Id.
244. Id.
245. Denise Grady, Facing End-of-Life Talks, Doctors Choose to Wait, N.Y. TIMES, Jan.
12, 2010, availableat http://www.nytimes.com/2010/01/12/health/I2seco.html? emc=etal.
246. Alexi Wright et al., Associations Between End-of-Life Discussions, Patient Mental
Health, Medical Care Near Death, and CaregiverBereavement Adjustment, 300 J. AMER. MED.
Ass'N 1665, 1668 (2008); see also Marie Bakitas et al., Effects ofa PalliativeCare Intervention
on Clinical Outcomes in Patients With Advanced Cancer, 302 J. AMER. MED. Ass'N 741, 748
(2009) (describing nurse-led intervention for patients newly diagnosed with cancer which
improved mood and quality of life. The project emphasized patient empowerment and
communication of values, priorities and treatment preferences, particularly "during times when
anticancer treatments were less likely to halt disease progression or alleviate symptoms.").
247. Wright et al., supra note 246, at 1670-71.
414
UNIVERSITY OFFLORIDA JOURNAL OF LAW & PUBLIC POLICY
[Vol. 20
Perhaps the best guidance on handling painful patient-doctor

communications is to practice what Timothy Quill and Christine Cassell
call "nonabandonment." 248 Patients will feel more at ease in revealing
fears about death "if health care providers have the courage to ask about
them." 24 9 Patients and their families take solace in knowing that their
physicians are "willing to face the unknown together with them, and to
address any extremes of suffering that may arise." 250 Fear of future pain
and suffering is among the most powerful inducements to pursue a
hastened death. Indeed, Pearlman and his colleagues suggest that a
patient's request for aid in dying should spark a thorough assessment of
the patient's motives as well as ways to attend to and mitigate the
patient's suffering.251 But how do doctors typically respond when
patients ask them for advice and assistance in planning their own
deaths?
B. Doctors and PatientsSpeaking ofDeath
At the outset, it should be noted how hard it is for patients to
approach the subject of assisted dying with their physicians. Even an
attempt to find out more about a serious prognosis causes patients to
feel "flustered," "apprehensive and intimidated," "cognizant of the
physician's limited time," "unable to find the right words," and "afraid
of crying." 252 In broaching the subject of assisted dying, patients often
sense resistance and aversion in their doctors, turning the conversations
into skirmishes and limiting their access to information. 25 3 One patient,
seeing how unnerved her oncologist was by the mention of hastened
death, felt compelled to "change the subject for his sake." 25 4 "I learned
that he's a baseball fan," the patient said, "and much more comfortable
if I change the topic to baseball. It's awful when you have to try and
make them feel comfortable, but that's the way it is." 25 5 For some
clinicians, allusions to assisted suicide provoke such strong emotional
reactions that they foreclose further discussion. One neurologist
declared that physician aid in dying was "a terrible thing and the wrong
248. Timothy E. Quill & Christine K. Cassell, Nonabandonment: A Central Obligationfor
Physicians,in QUILL & BATTIN, supranote 31, at 24, 32.
249. Id.
250. Id.
252. Mercedes Bem-Klug, The Ambiguous Dying Syndrome, 29 HEALTH & Soc. WoRK 55,
62 (2004).
253. Anthony L. Back, Doctor-PatientCommunications about Physician-Assisted Suicide
[hereinafter Back, Doctor-PatientCommunications], in QUILL & BATTIN, supra note 31, at 102,
103.
254. Id.
255. Id.
STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVEON THE END OF LIFE
2009)
415
thing to do."2 ss The conversation, said the patient, "was kind of
awful."
257
Because requests for aid in dying are also made in states where it is
illegal, doctors often worry about placing their careers in jeopardy.
Some behave "as if discussions of assisted suicide, in and of
themselves, [are] illegal and dangerous."2 5 8 Patients are left at a loss as
to who they can safely approach. One patient, upon resolving to bring
up the subject of assisted dying with her physician said, "I went in with
fear and trembling ... It's a real crap shoot." 259
For one patient, the penalty for bringing up the subject of assisted
dying was more pain. Non-terminally ill patients seeking lethal
prescriptions pose especially thorny problems for physicians. An MS
patient, whose pain was becoming increasingly hard to control,
attempted to discuss his interest in hastened death with his care team.
According to his wife, the doctors responded by becoming "even more
stingy with the [pain] medications because they were very worried that
he was going to use the medications to kill himself."2 6 At times, a
doctor who appears sympathetic to a patient who seeks help in dying
can cause harm by his unacknowledged ambivalence. In one instance, a
patient, upon reading Final Exit,2 6 1 learned that the barbiturate
secobarbitol was the recommended chemical means to end one's life.
The doctor was reluctant to prescribe this medication and instead
prescribed flurazepam, a less potent sedative hypnotic agent. 26 2 After
accumulating a sufficient supply of medication, the patient, in the
presence of her family, took the pills and went to sleep. "And then the
horrible part started," explained her daughter, "because then she
wouldn't die."2 6 3 After an "agonizing" eleven hour vigil, during which
was "freaking out," the patient finally succumbed without
the family 264
awakening.
Death with dignity is not blanketly guaranteed, even in Oregon. State
law requires a second medical consultation to confirm the patient's
terminal status, as well as voluntariness and mental capacity to engage
in assisted dying.265 One patient who had the full approval of her
256.
257.
258.
259.
260.
STUDIEs
Id.
Id.
Id.
Id.
Helene Starks et al., Family Member Involvement in Hastened Death, 31 DEATH
105, 118 (2007).
261. DEREK HuIPHRY, FINAL EXIT (1991). The book is a how-to manual on committing
suicide.
262.
263.
264.
265.
Starks et al., supra note 260, at 113.

Id.
Id.
OR. REV. STAT. 127.820 (2009).
416
[Vol. 20
primary doctor, found the second physician to be "dragging her feet,"

perhaps because "it was a moral issue with her." 266 Despite the patient's
repeated insistence that she wanted to go through with her plan, the
doctor further procrastinated by requiring her to undergo a psychiatric
evaluation. 267 This alone was burdensome because the patient could no
longer walk. At the psychiatrist's office, the patient played the requisite
word games, answered a multitude of questions and, at the end, looked
at the psychiatrist and asked, "Well, did I pass?" 2 68 The psychiatrist was
moved to tears because the patient's "idea of winning and achieving
was so she could take her own life." 269 Although, for this patient,
compliance with the law was somewhat onerous, the statute did permit
her doctor to be present at her death. A gentle, reassuring presence, he
confirmed that the patient's act was voluntary and remained with her
and her family while she ingested the medication. 27 0 The patient died
within fifteen minutes. 27 1

Where physician assisted dying is illegal, willing patients and
doctors often collude in secrecy, avoiding "explicit discussions of
medication use" and relying on indirect, sometimes cryptic
272 ,sc
In such cases, patients often seek advice from groups
instructions.
like Compassion & Choices. But the rarely acknowledged fact is that,
legal or not, physicians assisted in their patients' deaths in the past and
they continue to do so. 273 Forty or fifty years ago, young doctors knew
that older, more experienced physicians might administer large doses of
morphine to suffering patients and speed up their deaths. This
occasional practice, along with the tacit abandonment of dying patients,
"had no place in the curriculum or in the discourse of the medical
profession at large."2 7 4 It simply was not talked about.
As patients, we sometimes long for some small sign that doctors feel
for us, that our pain and suffering have struck a chord and resounded in
their own experience. Empathy shown in doctor-patient interactions is
satisfaction as well as "adherence to
believed to improve patient ,,275
Yet, as determined by one recent
physicians' recommendations.
266. Starks et al., supranote 260, at 120.
267. OR. REV. STAT. 127.820. Such evaluations are required when the doctor suspects the
"patient may be suffering from a psychiatric or psychological disorder or depression causing
impaired judgment." OR. REV. STAT. 127.800(5).
269. Id.
270. Id. at 121.
271. Id.
272. Back, Doctor-PatientCommunications, in QUILL & BATTIN, supra note 31, at 109.
273. Cassell, When Suffering PatientsSeek Death, in QUILL & BATTIN, supranote 31, at 75,
77.
274. Angell, The Quality of Mercy, in QUILL & BATTIN, supra note 31, at 16.
275. Diane S. Morse et al., Missed Opportunities for Interval Empathy in Lung Cancer
2009]
STOPPING FOR DEA TH: RE-FRAMING OUR PERSPECTIVE ON THE END OFLIFE
417
study, empathy is apparently not a priority in medical practice. This

analysis of doctor interactions with lung cancer patients showed that,
out of 384 opportunities to respond empathically, doctors ignored all but
10% of them.2 76 Physicians "provided little emotional support,"
preferring to take refuge in "biomedical questions and statements."
When faced with requests for assisted dying, many, if not most
doctors hesitate to participate, and they should not feel coerced or
compelled to do so. 2 7 8 But by silencing their patients' fears and
concerns with peremptory denials, they pass up critical opportunities for
humane, compassionate intervention. The building of a "therapeutic
alliance" can be as reassuring as a prescription for lethal drugs.2 7 9
Sometimes, patients feel they are sorely in need of both.
V. LAW, MEDICINE, AND THE ART OF DYING
I never spoke with God,
Nor visited in heaven;

Yet certain am I of the spot
As if the chart were given.
Emily Dickinson 280
First one birdcall, then three, then a chorus from down by the river.
This would be a good time to die with the bottle ofpills and a waterjug
handy, all to the gatheringdensity of birdsong...
*
281
Jim -Harrison
A. Law in the Service of Limitation

In 1997 the U.S. Supreme Court, in Washington v. Glucksberg,
unanimously declined to recognize a right to assistance in committing
suicide as a fundamental liberty interest protected by the Due Process
Clause.2 8 2 Since then, reams of legal commentary, often inscribed with
Communications, 168 ARCH. INTERN. MED. 1853, 1853 (2008).
276. Id.
277. Id.
278. Wendy Johnston & Paul Bascom, Physicians' Role in Physician-Assisted Suicide
Discussions, 6 VIRTUAL MENTOR (Amer. Med. Ass'n J. Ethics) (2004), available at http://
virtualmentor.ama-assn.org/2004/08/ccasl-0408.html.
279. Back, Doctor-PatientCommunications, in QUIL & BATTIN, supranote 31, at 114.
280. Emily Dickinson, I Never Saw a Moor, in THE COLLECTED POEMS OF EMILY
DICKINSON, supra note 1, at 1052.
281. JIM HARRISON, THE ROAD HOME 428-29 (1998).
282. Washington v. Glucksberg, 521 U.S. 702, 728 (1997). On the same day, the Court
decided Vacco v. Quill, 521 U.S. 793 (1997), turning away an Equal Protection Clause
418
(Vol. 20
words like "dignity" and "autonomy," have wrapped themselves around

wie' Glucksberg effectively put an
283
But while
the assisted dying debate.
end to rights talk, at least on the federal level, it did little to elucidate the
issues. Writing on the case's tenth anniversary, Yale Kamisar called
Glucksberg "the most confusing and the most fragile 9-0 decision in
Supreme Court history." 2 84 In neither the majority nor in the five
concurring opinions did the justices correctly or coherently define the
questions presented. 2 85 The plaintiffs, asserted Kamisar, were not
seeking a broad-based right to commit suicide, but "only a right to a
physician's assistance in doing so," and in "very special circumstances,"
namely, when the patient is terminally ill. 286
Kamisar also noted the difficulty of reconciling Glucksberg with the
Supreme Court's more recent decision in Lawrence v. Texas. 7 Unlike
Glucksberg, Lawrence generously interpreted the reach of the Due
Process Clause, extending its protections to homosexuals engaged in
consensual sodomy,2 8 8 thus overruling Bowers v. Hardwick.2 8 9
Declaring our most intimate choices to be immune from state intrusion,
the Court endorsed as inviolate the rights to privacy and dignity in
making those choices. 29 0 The Lawrence court's rapturous endorsement
of the "mystery of human life" language in Planned Parenthood v.
Casey seemed to breathe new life into the privacy and autonomy
challenge to New York's statute criminalizing assisted suicide, and holding thatVthe difference
between the withdrawal of life support and the provision of life-ending drugs justifies disparate
legal treatment. Id. at 801-02. See Stern & DiFonzo, supra note 20, at 117-20 (analyzing
Glucksberg and Quill).
283. See, e.g., Erwin Chemerinsky, Washington v. Glucksberg was Tragically Wrong, 106
MICH. L. REV. 1501, 1503 (2008); Daniel 0. Conkle, Three Theories of Substantive Due
Process, 85 N.C. L. REV. 63, 90 (2006); Kurt Darr, Physician-Assisted Suicide: Legal and
Ethical Considerations,40 J. HEALTH L. 29, 41 (2007); Barbara J. Evans, Judicial Scrutiny of
Legislative Action that Presents Bioethical Dilemmas, 16 VA. J. Soc. POL'Y & L. 179, 214
(2008); B. Jessie Hill, The ConstitutionalRight to Make Medical Treatment Decisions:A Tale of
Two Doctrines, 86 TEx. L. REV. 27 (2007); Maxine D. Goodman, Human Dignity in Supreme
Court ConstitutionalJurisprudence,84 NEB. L. REV. 740, 741 (2006); Youngjae Lee, Valuing
Autonomy, 75 FORDHAM L. REV. 2973, 2973 (2007); Mattei Ion Radu, Incompatible Theories:
Natural Law and Substantive Due Process, 54 VILL. L. REv. 247, 257 (2009); Neomi Rao, On
the Use and Abuse of Dignity in ConstitutionalLaw, 14 COLUM. J. EuR. L. 201 (2008); Mark S.
Stein, Necessity, Not Autonomy, 86 TEx. L. REV. 15, 20-21 (2008); John C. Toro, The Charade
of Tradition-BasedSubstantive Due Process, 4 N.Y.U. J.L. & LIBERTY 172, 189 (2009).
284. Yale Kamisar, Can Glucksberg Survive Lawrence? Another Look at the End of Life
andPersonalAutonomy, 106 MICH. L. REV. 1453, 1460 (2008).
285. Id. at 1459-60.
286. Id. at 1460-61.
287. Lawrence v. Texas, 539 U.S. 558 (2003).
288. Id. at 574.
289. Bowers v. Hardwick, 478 U.S. 186 (1986).
290. Lawrence, 539 U.S. at 575.
291. Id. at 574 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992)). The
2009]
STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OFLIFE
419
arguments in support of the right to physicians' assistance in dying.2 9 2

Nevertheless, in the decade following Glucksberg, no state legislature
legalized physician aid in dying, and no state court unearthed a right to
the practice in its own constitution. 2 9 3
In December 2008, a Montana district court declared that state
constitutional rights to privacy and dignity "mandate that a competent
terminally ill person has the right to choose to end his or her life." 2 94
The plaintiff, terminally ill with leukemia, challenged the
constitutionality of the state's homicide statutes as applied to physician
assisted suicide. The court based its decision on the Montana
constitution's individual dignity clause 295 and the right to privacy
clause, 296 noting that Montana's "stringent protections of its citizens'
right to privacy" exceed even those of the U.S. Constitution. 2 97 On
appeal, the Montana Supreme Court reviewed the trial court's judgment
de novo, choosing to resolve the issue "at the statutory rather than the
constitutional level." 2 9 8 The question presented was "whether the
consent of the patient to his physician's aid in dying could constitute a
statutory defense to a homicide charge against the physician." 299 The
court concluded that a terminally ill patient's consent to physician aid in
dying, as long as it is competent and voluntary, does not violate public
policy. 300 The patient's "peaceful and private act"30 1 of ingesting
doctor-prescribed medication is "not comparable to the violent, peacebreaching conduct" 302 that threatens the public welfare. Moreover,
relevant passage in Casey pertained to personal decisions concerning marriage, procreation,
contraception, family relationships, child rearing, and education:
These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one's own concept of existence, of meaning, of the
universe, and of the mystery of human life.
Id.
292. Kamisar, supra note 284, at 1458-59.
293. Id. at 1467.
294. Baxter v. Montana, No. ADV-2007-787, 2008 WL 6627324, at *17 (Mont. Dist. Ct.
Dec. 5, 2008).
295. MONT. CONST. art. II, 4 (stating "[t]he dignity of the human being is inviolable").
296. MONT. CONST. art. II, 10 (stating "[t]he right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing of a compelling state
interest").
297. Baxter, No. ADV-2007-787, at 15.
298. Baxter v. Montana, 224 P.3d 1211, 1215 (Mont. 2009).
299. Id.
300. Id. at 5-6, 12-13.
301. Id. at 7.
302. Id.
420
[Vol. 20
although the patient and physician "work together to create a means by

which the patient can be in control of his own mortality,"3 03 the doctor
"is not directly involved in the final decision or the final act." 304 For
further statutory guidance, the court turned to Montana's Terminally Ill
Act,305 which expressly shields physicians who follow a patient
directive to withhold or terminate life-sustaining treatment from civil
criminal liability. 30 6 The court reasoned that, if doctors are immunized
from such direct acts as disconnecting a ventilator or withholding
treatment, it is neither inconsistent nor offensive to public policy for
terminal patients to self-administer life-ending medication without a
physician's direct or immediate assistance. 307
Baxter's holding substantiates Montana's "long-standing, evolving
and unequivocal" respect for patient autonomy at the end of life, as
evidenced in the state's Terminally Ill Act. 30 That this deference is
rooted in statutory entitlement rather than constitutional mandate signals
a new direction in end of life policymaking. A case quite similar to
Baxter is currently pending in the Superior Court of Hartford,
Connecticut.309 In that action, plaintiff doctors seek both a declaratory
judgment that physician aid in dying does not constitute assisting a
suicide under Connecticut's manslaughter statute, 3 1 0 and a permanent
injunction against state prosecution of doctors who provide physician
aid in dying to terminally ill individuals. Under Oregon and
Washington's Death with Dignity laws, physician aid in dying is
differentiated from suicide, assisted suicide, active euthanasia, mercy
killing, and homicide. 3 1 1 States seeking to legitimate physician aid in
dying may no longer be mining constitutionally-based notions of
privacy and dignity for inspiration. Shielding doctors from civil and
criminal liability, especially in conjunction with existing state laws that
303. Id.
304. Id. (emphasis in original).
305. MONT. CODE ANN.
50-9-204 (2009).
306. Id.
307. Baxter, 224 P.3d at 1220. Whether a distinction exists between withdrawing or
withholding life-sustaining treatment and physician-aided death has long been a source of
contention in the assisted dying debate. See, e.g., David Orentlicher, The Alleged Distinction
Between Euthanasiaand Withdrawal of Life-Sustaining Treatment: Conceptually Incoherent
andImpossible to Maintain, 1998 U. ILL. L. REv. 837-60. While Baxter removes this distinction,
the U.S. Supreme Court, in Vacco v. Quill, 521 U.S. 793, 801 (1997), firmly declined to
abandon it: "when a patient refuses life-sustaining medical treatment, he dies from an
underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a
physician, he is killed by that medication."
308. Baxter v. Montana, 244 P.3d at 248 (citing Title 50, Chapter 9, MCA).
309. Blick v. Div. of Criminal, HHD-CV-09-5033392-S (Sup. Ct. Conn., filed Oct. 6,
2009).
310. CoNN. GEN. STAT.
311. ORE. REv. STAT.
539-56(a).
127.880; REv. CODE WASH. 70.245.180.
2009]1
421
explicitly protect patient autonomy, may furnish a more workable,

pragmatic approach to assisted dying legislation. Other than the Baxter
trial court, no other state court has acknowledged a constitutional right
to assisted suicide. 3 12
Oregon voters approved the Oregon Death with Dignity Act in
1994.3 In 2008, Washingon voters followed suit and enacted a
virtually identical statute. 3 4 To date, these citizen initiatives stand
alone, and no state legislature has passed legislation permitting assisted
suicide. Both statutes require oral and written requests by the patient,
verification as to competency and terminal illness by an attending and
consulting physician, and a referral for counseling if the doctor suspects
that the patient's judgment is impaired by a psychiatric or psychological
disorder or depression.3 1 5 Both statutes limit the conferring of a
dignified death to the terminally ill and, thus, the definitively dying. 3 16
They define an illness as terminal when it is "incurable," "irreversible,"
and likely to "produce death within six months." 317 Baxter defines
terminal illness only insofar as it alludes to statutory language
pertaining to "incurable or irreversible condition." 318
Sometimes diseases far outlast the patient's coping capabilities.
Amyotrophic Lateral Sclerosis (ALS) patients with less than six months
to live may have already "lost the use of their hands and have such
difficulty swallowing that taking oral medication without assistance is
no longer possible. 3 19 Further, terminal illness rarely conforms to
312. The Florida Supreme Court upheld a statute prohibiting assisted suicide, reasoning
that any asserted privacy interest was outweighed by State's compelling interests in preserving
life, preventing suicide, and maintaining integrity of medical profession. Krischer v. McIver,
697 So. 2d 97 (Fla. 1997). The Alaska Supreme Court reached a similar conclusion, upholding
that state's manslaughter statute against a constitutional attack on privacy grounds mounted by
mentally competent, terminally ill adults who sought to have their physicians declared exempt
from prosecution for the purpose of assisting them to commit suicide. Sampson v. Alaska, 31
P.3d 88 (Alaska 2001). Similarly, a California Court of Appeal held that a terminally ill
individual's constitutional rights to privacy and to refuse medical attention did not extend to a
right to an assisted suicide. Donaldson v. Lungren, 4 Cal. Rptr. 2d 59 (Cal. Ct. App. 1992).
Finally, the Colorado Court of Appeals held that the First Amendment's Free Exercise Clause
would not prevent the state from enforcing the statute making it manslaughter to intentionally
cause or aid another person's suicide. Sanderson v. Colorado, 12 P.3d 851 (Colo. App. 2000).
313. OR. REV. STAT. 127.800 (2000) (Oregon Death with Dignity Act); see Stern &
DiFonzo, supra note 20, at 125 (describing the process of enactment). In 1997, Oregon voters
defeated a measure to repeal the Act by an even larger margin than the majority originally
supporting it. Stern & DeFonzo, supra note 20, at 125.
314. WASH. REv. CODE 70.245 (2008) (Washington Death with Dignity Act).
315. OR. REv. STAT.
127.800; WASH. REV. CODE 70.245; see Stem & DiFonzo, supra
note 20, at 125-30 (analyzing the Oregon statute).

316. OR. REV. STAT.
317. OR. REv. STAT.
127.805; WASH. REV. CODE 70.245.020.

127.800 (12); WASH. REv. CODE 70.245.010 (13).
318. Baxter v. Montana, 224 P.3d at 1218 (citing MONT. CODE ANN.
319. Ganzini et al., Attitudes ofPatients,supranote 77, at 971.
50-9-103(2) (2009)).
422
[Vol. 20
specific timelines, and the assumption that doctors can readily identify
terminally ill patients is highly questionable. Cancer, the second leading
cause of death in the United States, follows a generally recognizable
pattern and its dying process is more predictable than in other
diseases. 320 Still, physicians find it difficult to recognize impending
death, even in end-stage disease.321 Determining whether a patient is
'dying' of heart disease, America's leading cause of death, is not at all
clear-cut, and doctors cannot pinpoint when continued medical
intervention is no longer benefitting the patient.3 2 2 Patients with chronic
obstructive pulmonary disease (COPD), congestive heart failure (CHP),
and end-stage liver disease (ESLD) may "never ex erience a time
during which they are clearly dying of their disease. 23 Although the
major causes of mortality have long since shifted from the acute to the
chronic, "it can be difficult to determine at what point a progressive
chronic illness becomes a terminal diagnosis." 3 24 Bern-Klug employs
the term, "ambiguous dying syndrome" to denote a state of declining or
severely compromised health with an indefinite prognosis. 32 5 That
"more people are dying in the penumbra of the ambiguous dying
syndrome than die with a terminal illness" 326 should radically alter our
approaches to morbidity and mortality. Intractable suffering, both
physical and existential, is not confined to the imminently dying. Yet,
without ever really knowing "when the end of life begins,"32 we cling
to the terminal illness standard, believing that it makes our assisted
dying laws more palatable and more defensible.
There may come a time when we discard the notion of terminal
illness as too amorphous to be workable. While the Montana Supreme
Court's Baxter opinion retains this criterion, the lower court opinion it
supplanted more expansively defined a patient eligible for assisted
dying as one "who is suffering pain and the indignity of his disease ...
and for whom palliative care is inadequate to satisfy his personal desire
to die with dignity." 3 2 8 In a related vein, the euthanasia law of the
320. Bern-Klug, supranote 252, at 57-58.

321. Id. at 57.
322. Id.
323. Ellen Fox et al., Evaluation ofPrognosticCriteriafor DeterminingHospice Eligibility
in Patients With Advanced Lung, Heart, or Liver Disease, 282 J. AMER. MED. Ass'N 1638
(1999).
324. Bern-Klug, supra note 252, at 58.
325. Id.
326. Id. at 61.
327. Id. at 57.
Dec. 5, 2008).
2009]1
STOPPING FOR DEATH: RE-FRAANG OUR PERSPECTIVE ON THE END OFLIFE
423
Netherlands requires as a predicate not terminal illness, but unbearable

suffering with no hope of improvement. 32 9
Any opportunity to deepen and expand our understanding of illness
and dying would inform our laws and policies in aid of suffering. We
might have hoped that the Oregon experiment, now in operation for
well over a decade, would have proven enlightening. It has, and it has
not.
B. hat is the Matter with Oregon?
Since Oregon's Death with Dignity Act (ODDA) took effect in
1997, 401 patients have ended their lives in accordance with the
statute.3 30 Most of them were white, well-educated, between the ages of
No
55 and 84, enrolled in hospice care, and medically insured.
outright abuses under the law have been reported, and critics' concerns
about vulnerable individuals being induced or coerced to hasten their
deaths have been quieted.3 3 2 Criticism of ODDA persists, however,
principally regarding insufficient patient protections and the guarded
way in which the Oregon Public Health Division (OPHD) doles out
information about the law's operation. 33 3
ODDA's eligibility criteria omit mention of patient suffering,
unbearable or otherwise. Physicians who assist in suicide are not
required to delve into their patients' motivations, nor are they expected
to be skilled at recognizing and relieving physical and existential
distress. 3 34 Also absent from the statute is some familiarity with the
notion that a patient who requests a lethal prescription presents an
opportunity for empathy and reassurance, and for exploration of
concerns about the dying process. Under ODDA, it seems, doctors focus
less on the relief of suffering in dying patients than on matters of
statutory compliance.3 3 5
329. See Kimsma, supra note 47, at 1; HILEY, supra note 175, at 199 (quoting the Royal
Dutch Medical Association's view that medical ethics requires that a patient requesting
euthanasia must be experiencing "suffering due to pain, whether or not based on a perceivable
physical condition, or suffering due to a physical condition, or physical disintegration without
pain that is unacceptable to the patient.").
330. Oregon Department of Human Services, Public Health Division, 2008 Summary of
Oregon's Death with Dignity Act, at 2, available at http://egov.oregon.gov/DHS/ph/pas/docs/
yearl L.pdf [hereinafter Oregon Department of Human Services, 2008 Summary].
331. Id.
332. Courtney S. Campbell, Ten Years of "Death with Dignity," 22 NEw ATLANTis (2008),
at 39, availableat http://www.thenewatlantis.com/publications/ten-years-of-death-with-dignity.
333. Herbert Hendin & Kathleen Foley, Physician-AssistedSuicide in Oregon: A Medical
Perspective, 106 MICH. L. REv. 1614, 1615 (2008).
334. Id. at 1615-16.
335. Id. at 1616.
UNIVERSITY OF FLORIDA JOURNAL OF LA V& PUBLIC POLICY
424
[VoL 20
Hendin and Foley, two of ODDA's most vocal critics, insist that
"desperation, anxiety, and depression underlie most requests for assisted
suicide," 336 and that patients who pursue a hastened death "are usually
telling us that they desperately need relief from their mental and
physical distress and that without such relief they would rather die." 337
Such statements, while dramatic, are not supported by the research on
actual assisted dying patients. Ganzini and Back have concluded that
"the Oregon data do not support the assertion that patients who die by
assisted suicide are depressed." 33 8 Starks and her colleagues noted that
empirical studies of hastened death show that the typical participating
patient is "not depressed."339 In their drive to condemn the practice of
assisted dying, Hendin and Foley's sardonic reference to Oregon as "the
first state to legalize suicide as a treatment for medical illness,"3 4 0
overstates their case. Hendin and Foley fail to distinguish between
hopelessness and depression 34 1 or between depression and something
they call "current distress." 342 Nor do they cite any authority for their
assertion that depression is "often precipitated by discovering a serious
illness." 3 43
Elevating the role of depression in desire for hastened death at the
expense of the more valid and more recognized role of existential
suffering does not benefit dying patients. Plying them with
"[s]upportive psychotherapy" and "antidepressant medication," 344 as
Hendin and Foley recommend, may help some patients, but for others it
can exacerbate an already overmedicalized death. Diagnosis and
treatment of depressive disorders in the severely ill is important. It may
even be advisable to make psychiatrists an integral component of the
palliative care team. 34 5 Clinicians, however, "should not assume the
presence of depression, which might lead to ineffective, unnecessary,
even harmful treatments."3 4 6 Currently, there is no definitive research
showing that treatment for depression reduces the desire for hastened
death.3
336. Id.at 1623-24.
337. Id. at 1623.
338. Linda Ganzini & Anthony Back, From the USA: Understanding Requests for
Physician-AssistedDeath, 17 PALLIATIVE MED. 113, 113 (2003).
339.
340.
341.
342.
343.
344.
345.
Starks et al., supranote 91, at 224.

Hendin & Foley, supra note 333, at 1620.
Id.
Id. at 1621.
Id. at 1636.
Id. at 1631.
Scott A. Irwin & Frank D. Ferris, The Opportunityfor Psychiatry in PalliativeCare,
53 CANADIAN J. PSYCHIATRY 713, 716-18 (2008).
346. Ganzini et al., Why Oregon PatientsRequest Assisted Death, supra note 111, at 156.
347. Breitbart et al., supra note 64, at 2911; Ganzini et al., PrevalenceofDepression,supra
2009]
STOPPING FOR DEATH: RE-FRAMNG OUR PERSPECTIVEON THE END OF LIFE
425
Under ODDA, physicians are charged with establishing whether

patients requesting assisted dying are in need of mental health
counseling.3 8 This schema may allow some "potentially ineligible"
patients to acquire prescriptions for lethal drugs. 49 Hendin and Foley
aver that "physicians are not reliably able to diagnose depression." 3 0
But measuring depression's effect on decision making is far more
difficult than diagnosing it, "even by expert assessment." 53 As Ganzini
and her colleagues have discovered, there are "no standards for
determining competency to commit suicide." 3 52
In the care of dying patients, there can be no better safeguard against
inappropriately hastened death than a long-term, in-depth doctor-patient
relationship. Assisted dying is not just a means to "end a life at a
particular moment, but more the end of a long process with an intensely
emotional culmination." 353 In the Netherlands, assisted dying
procedures are performed by doctors who have known their patients for
a long time. 3 54 Conversely, in Oregon, from 1998 to 2008, the median
duration of the patient-physician relationship prior to death was only 10
weeks. 35 5 Moreover, prescribing physicians were present at their
patients' deaths only 25% of the time.3 56 It seems paradoxical that a
'death with dignity' statute would neglect to even recommend that
doctors be present with their patients when the drugs are ingested and
death is pronounced.3 5 7 Even in the absence of complications, "it would
still be a profound gesture of presence and commitment to remain with
the patient to the very end." 35 8
note 72.
348. OR. REV. STAT.
127.825 (2009).
349. Ganzini et al., PrevalenceofDepression,supra note 72.

350. Hendin & Foley, supra note 333, at 1621. In patients who are unresponsive or whose
physical and psychological symptoms overlap, depression can be difficult to diagnose. In
general, however, diagnosing depression can be "relatively straightforward." Ganzini et al.,
Prevalenceof Depression,supranote 72. Chochinov proposes the simple yet effective screening
method of asking patients whether they are depressed "most of the time." Chochinov, supranote
57, at 86. But while depression may be overlooked in some terminally ill patients, psychiatric
diagnoses "provide too narrow a framework to contain the broad spectrum of end-of-life
distress." Id.
352. Ganzini et al., Attitudes of Oregon Psychiatrists Towards Physician-AssistedSuicide,
153 AM. J. PsYciATRY 1469, 1470 (1996).
353. Kimsma, supranote 47, at 2.

354. Id.
355. Oregon Department of Human Services, Public Health Division, 2008 Annual Report,
Table 1, available at http://egov.oregon.gov/DHS/ph/pas/docs/yrll-tbl-1.pdf [hereinafter
Oregon Department of Human Services, 2008 Annual Report].
356. Id.
357. Campbell, supranote 332, at 42.
358. Id.
426
[Vol. 20
Perhaps the most far-reaching failing of ODDA is that, although it is

now in its second decade of operation, it has generated disappointingly
little information about the doctors and patients who participate in
assisted dying. Pursuant to statute, OPHD does collect and publish
demographic data annually; however, specifics regardin compliance
with ODDA are not made available for public inspection. While this
practice serves to protect doctor-patient confidentiality, it provides no
mechanism for independent research.360 Moreover, data about patient
concerns comes, not from the patients themselves, but from physicians
who fill out a "government-issued standardized form" asking them to
choose among pre-determined "generic categories." 3 6 1
Much remains to be learned about patient motivation in hastened
death-the nature of their illnesses, their responses to hospice and
palliative care as well as to spiritual and mental health counseling, and
why some patients make use of their prescriptions for lethal drugs while
others do not. We need to know more about the quality of doctor-patient
relationships in which assisted dying is discussed-how long and how
well doctors know their patients, their areas of specialization, why they
grant some requests and refuse others, and how they determine issues of
competency. These and other areas of inquiry help not only to refine
assisted dying law and policy, but also enhance our ability to understand
and care for dying patients. By restricting access to such vital
information, "OPHD is wasting the opportunity to study a natural
experiment.. .. 362
The complexities of human suffering call for flexible, creative, and
even experimental, medical and legal strategies. It is somewhat
dispiriting that Washington State's voters chose to enact a carbon copy
of ODDA and that Montana may be contemplating legislation similar to
that of Oregon.3 63 Future legislation should be based on detailed
359. OR. REv. STAT. 127.865 (2)-(3) (2009).
360. Hendin & Foley, supra note 333, at 1614.
361. Campbell, supra note 332, at 39. Campbell expressed skepticism that the official
reports filed by physicians under the ODDA accurately reflect
the existential experience of dying patients as they face their own mortality.
The point of the ODDA was to empower, not silence, terminally ill patients,
and transparency and accountability in a democratic society should allow us to
hear patients in their own voices, not the rigid categories of political
bureaucracy or physician interpretation.
Courtney Campbell, Correspondence:Debating "Death with Dignity," 23 NEw ATLANTIs 3, 6
(2009), available at http://www.thenewatlantis.com/docLib/20090203_TNA23Correspondence.
pdf.
Dec. 5, 2008).
2009)
STOPPING FOR DEATH: RE-FRAAING OUR PERSPECTIVE ON THE END OFLIFE
427
exploration of end of life issues. This process would include testimony

from, among others, doctors, patients, family members and palliative
and hospice care professionals. Further, it is crucial that these laws and
policies contain procedures for ongoing research and evaluation.
Improving the care of dying patients demands openness, the sharing of
ideas, and continual reassessment of our end of life measures and
practices.
Discussions on the end of life arouse fear, discomfort, even outrage.
But it is only by exposing, rather than suppressing controversy that we,
ultimately, find the strength and wisdom to decide these matters for
ourselves. As Sherwin Nuland explained:
In the United States and democratic countries in general, the
importance of airing differing viewpoints rests not in the
probability that a stable consensus will ever be reached but in the
recognition that it will not. It is by studying the shades of opinion
expressed in such discussions that we become aware of
considerations in decision-making that may never have weighed
in our soul-searching. Unlike the debates, which certainly belong
in the public arena, the decisions themselves will always properly
be made in the tiny, impenetrable sphere of personal conscience.
And that is exactly as it should be. 3
Whether the Supreme Court decides to revisit the issues in
Washington v. Glucksberg3 65 is not as significant as what transpires at
our country's regional and local levels. As Sylvia Law has noted,
"While Supreme Court recognition of a constitutional right sounds like
a grand affirmation of liberty, most often it is a mopping-up operation to
bring the outliers into the consensus that has already been reached in the
states." 366
C. Promises, Promises:Hospice and PalliativeCare
Cicely Saunders, a pioneer in end of life care, believed firmly in the

power of the "hospice and palliative care" movement. 367 Thanks to her
efforts, most health practitioners view hospice as "the most
364. NULAND, supranote 5, at 156.
365. 521 U.S. 702 (1997).

366. Sylvia Law, Choice in Dying: A Political and Constitutional Context, in QUILL &
BATHN, supra note 31, at 300, 305; see also K.K. DuVivier, Fast-Food Government and
Physician-AssistedDeath: The Role of Direct Democracy in Federalism, 86 OR. L. REv. 895,
898 (2007) (discussing the role of voter initiatives in "fostering innovation by allowing the
states to serve as Brandeis laboratories.").
367. Cicely A. Saunders, A Hospice Perspective, in THE CASE AGAINST ASSISTED SUICIDE:
FOR THE RIGHT TO END-oF-LIFE CARE 281, 288 (Kathleen Foley & Herbert Hendin eds., 2002).
428
UNIVERSITY OF FLORIDA JOURNAL OFLAW & PUBLIC POLICY
[Vol. 20
comprehensive form of end-of-life care available."3 6 8 Marcia Angell

contends that, if high quality palliative care were universally accessible,
"there would be few requests for assisted suicide." 369
It is somewhat disconcerting, therefore, to discover that hospice and
palliative care are fallible. During ODDA's first decade, 86% of
patients who officially hastened their deaths were enrolled in hospice. 37 0
In 2008, 98% were hospice patients. 3 7 1 One possible explanation for
these surprising numbers is that patients enroll in hospice "so late in the
dying process" 72 that they lack the time to benefit from the services
offered. Still, in a study of terminally ill cancer patients, researchers
found that palliative care, even of a high quality, did not obviate desire
for hastened death.373 Another study found no "protective effect of
hospice enrollment on patient mood at the end of life." 37 4
Hendin and Foley charge that, in Oregon, "referral to hospice cannot
because
be regarded as a substantive palliative care intervention"
has
worsened
patients
ill
treatment of pain for that state's terminally
since ODDA went into effect. This assessment is at odds with that of
others who believe that ODDA "served as a catalyst to improved endof-life care among Oregon practitioners." 376 But while the vast majority
of dying patients do benefit from hospice and palliative care,377 some
suffering is so "inaccessible" 378 that it confounds all efforts to alleviate
it. Pain, aggravated by emotional factors like anger, panic and fear, may
resist the effects of opioid analgesics even in doses that are "sometimes
astonishingly high."3
'7
368. Linda Ganzini, The Oregon Experience, in QUILL & BATTIN, supra note 31, at 176.
369. Angell, The Quality ofMercy, in QUILL & BATTIN, supra note 31, at 21.
370. Oregon Department of Human Services, 2008 Annual Report, supra note 355.
371. Id. 2008 Summary.
372. Bern-Klug, supranote 252, at 60.
373. Breitbart et al., supra note 64, at 2911.
374. Rabkin et al., supranote 67, at 84.
376. Campbell, supra note 332, at 36; see also Cassell, When Suffering Patients Seek
Death, in QUILL & BATIN, supra note 31, at 87 ("One of the lessons of Oregon has been that
offering aid in dying has improved palliative care and concern with end-of-life treatment.");
Ganzini & Back, supra note 338, at 113 ("either despite or even because of the Oregon law,
there have been measurable improvements in end-of-life care since initial passage of the Act.").
377. Quill & Cassell, Nonabandonment: A Central Obligationfor Physicians, in QUILL &
BATTIN, supra note 31, at 32.
378. Cassell, When Suffering Patients Seek Death, in QUILL & BATTIN, supra note 31, at
79.
379. Id. at 82. Terminal, or controlled, sedation, where a patient is medicated to the point of
coma, is sometimes used in cases of intractable pain. It is generally given to patients "expected
to die within hours to days," and its timing and appropriateness are determined by the physician,
not the patient. Brigit R. Taylor & Robert McCann, Controlled Sedation for Physical and
Existential Suffering?, 8 J. PALLIATIVE MED. 144, 146 (2005). Although terminal sedation, as
well as voluntarily stopping eating and drinking, is "widely accepted by hospice and palliative
2009]
429
Patients most likely to pursue a hastened death are prone to placing

extraordinary value on independence and to poorly tolerate situations
beyond their control. 3 80 The dread of becoming dependent on others and
the desire to master future events are lifelong traits deeply ingrained
within the personality. 38 1 For these patients, management of symptoms
is often problematic and "[r]esponding with more palliative care is a
double-edged sword" 382 because "more care fuels fears of more
dependence on others." 3 83
According to Dr. Eric Cassell, believing that suffering can almost
always be relieved "displays an ignorance of what suffering is and how
it comes about." 384 Promoting hospice and palliative care as the sole
pathways to a good death, even in the face of their limitations, evinces
"a professional pride that borders on hubris and rigidity." 385 It also
hinders the development of interventions that specifically address the
existential concerns and fears of dependence that seem to evade existing
remedies.386 What seems especially troublesome to opponents of
assisted dy38ng is the ideal of dignity "reduced to a notion of
Hendin and Foley regard the need to control the dying
autonomy.
process as evidence of psychopathology. 38 8 The wish to manage one's
own dying is seen as aberrant and unseemly, as though patients should
be expected to "get with the program and die right."33 It is hard to
know what bothers the critics more: control in its own right or the
confusion of autonomy and dignity that reveals the "impoverishment of
our moral discourse" on assisted dying.3 90 But when we are at the point
care physicians," some doctors "continue to have moral objections and legal fears about these
options." Dan W. Brock, Physician-Assisted Suicide as a Last Resort at the End of Life, in
QUILL & BATTIN, supra note 31, at 143. See also Anemona Hartcollis, Hard Choice for a
ComfortableDeath: Drug-InducedSleep, N.Y. TIMEs, Dec. 27, 2009.
381. Ganzini & Back, supra note 338, at 113; Pearlman et al., supra note 117, at 237.
382. Ganzini & Back, supranote 338, at 113.
383. Id. Back described one patient whose "top priority was to maintain a sense of control
over his situation." Back, Doctor-PatientCommunications, in QUILL & BATTIN, supra note 31,
at 107. One morning, upon finding the mind-numbing effects of morphine intolerable, the
patient stopped his pain medication, dismissed his hovering hospice care worker and shot
himself. Id.
79.
385. Angell, The Quality ofMercy, in QUILL & BATTIN, supra note 31, at 22.
386. Ganzini & Back, supra note 338, at 114.
387. Campbell, supra note 332, at 45.
388. Hendin & Foley, supranote 333, at 1635-36.
389. Angell, The Quality ofMercy, in QUILL & BATTIN, supra note 31, at 22; see also Ross
Douthat, A More Perfect Death, N.Y. TIMES, Sept. 7, 2009 (charging those who seek assisted
death as lacking in appreciation for the "limits of human agency, and the importance of humility
in the face of death's mysteries.").
390. Campbell, supranote 332, at 45.
430
[VoL 20
of making our most private medical decisions, we have already

absorbed whatever "moral discourse" has to offer and have moved on to
a more individual analysis. We exercise control when we write an
advance directive, refuse medical treatment, or voluntarily stop eating
and drinking. Perhaps because these decisions are unaccompanied by
the trumpeting of dignity, they attract less commentary. Thus, the
choice of whether to "fight death or embrace it"391 is a choice between
technique and art, between trusting in the power of medicine to work
miracles, or in one's personal and spiritual capacity to create a fitting
end to life.
D. The Art ofDying
In Pittsford, N.Y., the elderly and dying members of the Sisters of
St. Joseph convent rarely opt for invasive surgeries, high-tech
diagnostic procedures or machines that sustain life; they decline all nonessential medications and die, not in hospitals, but within their
community.392 Due to a lifetime of healthy habits, few if any suffer
from diabetes (often caused by obesity), or chronic obstructive
pulmonary disease (often brought on by smoking). The sisters' religious
faith protects them from existential suffering and, rather than seeming
afraid of death, they "know when to let it be." 39 In the words of Dr.
Robert C. McCann, geriatrician and the sisters' primary care physician,
"they have better deaths than any I've ever seen." 394
Graceful aging and a peaceful death require no special setting, but
are helped along by "a large social network, intellectual stimulation,
continued engagement in life and spiritual beliefs" as well as health care
that eschews aggressive interventions and relies on principles of hospice
and palliative care. 395 The funerals of St. Joseph's sisters are "more
about the celebratory 'alleluia' than the glum 'De Profimdis."' 39 6 In this
sense, they evoke the life-affirming, triumphant deaths of those
eighteenth and nineteenth century Methodists described by Shai Lavi. 3 97
A good death can be a life's work, but most often the dying process
is the cumulative result of genetics, choices and happenstance. If
hastening death represents "a limited hope of mastery in the face of a
hopeless condition,"398 it is also a means of conciliation between doctor
Lavi, How Dying Became a 'Life Crisis,' supra note 18, at 5.
Jane Gross, Sisters Face Death with Dignity and Reverence, N.Y. TIMES, July 9, 2009.
Id.
Id.
Id.
Id.
397. LAVI, THE MODERN ART OF DYING, supra note 11, at 39-40.
398. Lavi, How Dying Became a Life Crisis, supranote 18, at 64.
391.
392.
393.
394.
395.
396.
2009]
STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVEON THE END OF LIFE
431
and patient. Euthanasia and, by association, assisted suicide are

"medicalized" forms of dying in that they require the assistance of the
medical profession. 399 But these practices also serve to highlight
medicine's limitations. The assisted dying movement did more than
improve hospice and palliative care. It forced us to reexamine our
conceptions of a good death and how medicine helps us and hurts us in
attaining it. The notion of control in dying is what validates the choice
to forego expensive treatment of questionable value, and to die while
still recognizable to ourselves and to others-not as alien beings in alien
settings, "hooked to tubes, machines and chemotherapy bags.'
The dilemma of art versus technique, of palliative versus curative
care, is especially pertinent to our growing crisis in health care. In the
struggle to contain expenses while expanding the reach of coverage,
something has to give. Medicine has come to signify our fondest hope.
Now we must ask it to account for itself.
E. The Cost ofDying
Apportioning health care's costs and resources is a rising and

increasingly bitter challenge. The elderly, in particular, fear that they,
more than anyone, will be called upon to sacrifice their health care
benefits in the drive to achieve universal coverage. 40 1 They may have
some cause for concern. One-third of Medicare spending "goes to
patients with chronic illnesses in their last two years of life," much of it
to the elderly. 402 A recent New York Times op-ed column
recommended cutting the cost of "intensive-care medicine for dying,
elderly eople" and redirecting it to preventive care for younger
patients. 03 The author further warned that health care rationing was
"imminent" and that, unless we curb the enormous cost of procedures
like "by-pass surgery and titanium knee replacements" for the very old,
we will be forced to "implement quick-and-dirty rules" based on
arbitrary criteria, like age. 40 4
399. Id.
400. Anemona Hartcollis, At the End, Offering Not a Cure but Comfort, N.Y. TIMES, Aug.
20, 2009, at Al, available at http://www.nytimes.com/2009/08/20/healtb/20doctors.html?
r-1&scp=1&sq=not%20a%20cure%20but%20a%20comfort&st-=cse [hereinafter Hartcollis, At
the End].
401. Kevin Sack, Where Elderly Back Obama, Health Bill Anxiety, N.Y. TIMEs, Aug. 21,
2009, at Al, available at http://www.nytimes.com/2009/08/21/health/policy/21housecall.html?
scp=l&sq=elderly%2Ohealth%20care%20anxiety&st-cse.
402. Hartcollis, At the End, supranote 400.
403. Richard Dooling, Health Care's Generation Gap, N.Y. TIMES, Aug. 17, 2009, at Al,
available at http://www.nytimes.com/2009/08/17/opinion/17dooling.html?scp-l&sq=health%2
Ocare%20generation%20gap&st-cse.
404. Id.
432
UNIVERSITY OF FLORIDA JOURNAL OFLAW & PUBLICPOLICY
[Vol. 20
In voicing very real worries about health care rationing, it is not

entirely logical to single out the elderly. By-pass surgery for an
otherwise healthy and vibrant ninety year-old reduces Medicare costs by
eliminating "repeated hospitalizations for heart failure."405 In a younger
patient suffering from cancer, congestive heart failure or dementia,
aggressive, life-prolonging procedures do not necessarily improve
quality of life.4 Even more than age, socio-economic status is a
"powerful predictor of health and well-being.'AO7 The highest rates of
morbidity and mortality from most major types of cancer occur among
poor and minority populations. 40 8 In blacks, "[43%] of all deaths occur
before age [65] compared to [22%] in whites.,Ao These ready-made
inequities further intensify fears about health care rationing.
A measure of the blame for runaway health care spending falls on
government and private insurance payment systems. Physicians are
often rewarded for ordering more tests and procedures because, "[T]he
more tubes you put in, the more you get paid."410 This bountiful flow of
cash seems to dry up, however, when less heroic measures are called
for. In the case of an 88 year-old woman with a weak heart and a
likelihood of cancer, "[M]edicare would pay hundreds of thousands of
dollars for endless hospital procedures and tests but would not pay $18
an hour for a non-hospice caregiver to come into [the patient's] home
and help her through her final days." 4 1 '
A good many patients are incapable of saying no to costly and futile
medical treatment. Dr. Joseph Sacco writes of the "thousands of New
Yorkers," incurably ill, mentally incompetent, and lacking in signed
health care proxies or surrogates, "for whom the prolongation of life [is]
the only legally sanctioned course of treatment."4 12 Green, a fifty-nine
year-old patient with AIDS-related dementia and fever was confined to
bed and a ventilator. He was a "valuable commodit' in terms of
hospital and nursing home Medicare reimbursement.4 1 His monetary
405. Anemona Hartcollis, Rise Seen in Medical Efforts to Treat the Very Old, N.Y. TImEs,
July 18, 2008, at Al.
406. Id.
407. Williams, supra note 34, at 28.
408. Id. at 33.
409. Id. at 32. Williams provides a moving account of suffering unique to dying "before
one's time." Id.
410. Reed Abelson, Weighing Medical Costs of End-of-Life Care, N.Y. TIMES, Dec. 23,
2009, available at http://www.nytimes.com/2009/12/23/health/23ucla.html?hp (quoting Dr.
Patrick T. Dowling, chairman of the department of family medicine at U.C.L.A.).
411. Timothy Egan, The Way We Die Now, N.Y. TIMES, Sept. 23, 2009, available at
http://opinionator.blogs.nytimes.com/2009/09/23/the-way-we-die-now/?emc=etal.
412. Joseph Sacco, Incapacitated,Alone and Treated to Death, N.Y. TIMES, Oct. 7, 2008,
at D5.
413. Id.
2009]
433
value as a patient also influenced his care.4 1 4 Despite the poorest of

prognoses, Green's perpetual status on life support subjected him to
pneumonias, infections, and other complications, all of which required
transfers between hospital and nursing home, and all of which resulted
in reimbursement to the various providers for these procedures. 4 15 His
wishes unknown, Green was "treated to death" 4 16 because his doctors
thought it was their legal and ethical obligation to do so. "Modem
American medicine," said Dr. Sacco, "owed him a better way." 417 So
did our system of law and ethics.4 1 8
In the context of scarcity in health resources, it seems reasonable to
place a lower priority on patients closer to death. But even in war,
accidents and disasters, standards of triage are subject to a lack of
consensus. 4 19 How to achieve "the greatest good for the greatest number
of people" raises a series of difficult questions: "Is it the number of lives
saved? Years of life saved? Best 'quality' years of life saved? Or
something else?"42 0 In the aftermath of Hurricane Katrina, a nurse at
New Orleans' Memorial Hospital defended her actions in injecting an
elderly, unconscious woman with morphine and sedatives, hastening her
death: "But even if it had been euthanasia," she said, "It's not
somethin we don't really do every day-it just goes under a different
name."42 In order to acquire legitimacy, health care allocations systems
must be perceived as fair and just by the populations they serve. This
can only be achieved if policies are "publicly understandable, accessible
and subject to public discussion and revision."4 22
414. Id.
415. Id.
416. Id.
417. Id.
418. Sacco asserted that, for mentally incapacitated patients who are critically or terminally
ill, who lack surrogates and who have given no evidence of their wishes, withholding treatment
is "a practice that is neither regulated nor publicly recognized." Id. In New York, even where
surrogates are available, withholding or withdrawing treatment is prohibited without a signed
health care proxy or clear and convincing evidence of a patient's wishes. See id. In some states,
surrogates are permitted to make decisions about life support, with or without knowledge of the
patient's wishes; in others, where surrogates are lacking, it is doctors who decide whether or not
to continue life support. Id. In one study of a metropolitan hospital intensive care unit, 16% of
patients admitted during a specific time period lacked surrogates and decision-making capacity.
Douglas B. White et al., Decisions to Limit Life-Sustaining Treatmentfor CriticallyIll Patients
Who Lack Decision-Making Capacity and SurrogateDecision-Makers, 43 CRTIcAL CARE MED.
2053-59 (2006). Physicians made decisions to withhold or withdraw treatment for 37% of these
patients, and sought guidance from the courts or the hospital ethics committee in a small
minority (11%) of these cases. See id. at 2053-59.
419. Sheri Fink, The Deadly Choices at Memorial, N.Y. TIMES MAG., Aug. 30, 2009, 6
(magazine), at 34.
420. Id.
421. Id. at 42.
422. Govind Persad et al., Principlesfor Allocation of Scarce Medical Interventions, 373
434
[VoL 20
F. Planningfor Death
Only about one-third of Americans have advance-care directives

specifying their wishes for treatment at the end of life.4 23 In the absence
of directives, families and health providers of terminally ill,
incapacitated patients are stricken with uncertainty as life-prolonging
procedures mount up, at considerable expense. Measures such as
California's Right to Know End-of-Life Options Act424 aim to address
these untimely information deficits. Under the Act, health care
providers must, at the request of terminally ill patients, provide
comprehensive information and counseling on end-of-life options.
The range of services to be discussed is quite inclusive, covering
hospice and palliative care, advance directives, refusal or withdrawal of
life-sustaining treatment, right to pursue disease-targeted treatment and
to receive prognoses with or without such treatment. 42 6 The focus on
terminal illness (a term undefined in the statute), however, ignores the
difficulty doctors sometimes face in quantifying the amount of time
remaining to a particular patient. 42 7 Further, the statute makes no
provision for patients with "seriously compromised and declining
health," or those who are chronically ill, frail and "at high risk of dying
at a time uncertain." 428 This omission leaves a large number of dying
patients with no statutory recourse for obtaining crucial end of life
information.
Advance directives, long touted as a means to achieve patient selfdetermination, may be underutilized because they are conceptually
defective. Rosenfeld et al. contend that eliciting patient preference for
specific lifesaving procedures, like CPR, is misguided.4 Rather, they
suggest speaking about interventions in terms of their outcomes,
evaluating their desirability as to whether they can "return a patient to
his or her most valued activities.A 3o Further, in treatment decisions
LANCET 423, 429 (2009). The authors propose distributing scarce health care resources
according to a method they term "the complete lives system." Id at 423. Based on the belief that
"enabling more people to live complete lives is better than enabling fewer," the system favors
younger people with better prognoses. Id. at 428-29.
423. Charles Lane, Undue Influence, WASH. PosT, Aug. 8, 2009, at Al3.
424. CAL. HEALTH & SAFETY CODE
442 (Deering 2009).
425. Id. 442.5.

426. Id.
427. Id. 442.
429. Kenneth E. Rosenfeld et al., End-of-life Decision-Making, 15 J. GEN. INTERN. MED.
620 (2000), availableat http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1495587.
430. Id.
2009]
STOPPING FOR DEATH RE-FRAMING OUR PERSPECTIVEON THE END OFLIFE
435
where advanced age is a factor, patients should be encouraged to "place

more emphasis on maintaining function than on longevity per se."4 1
McCue has suggested that, in cases of naturally dying, very elderly
patients, we push "medicalization a step farther" and "make dying a
diagnosis." 4 3 Recognizing these patients' conditions as incurable and
chronic minimizes the risk of harmful, aggressive interventions and
allows caregivers to concentrate on spiritual needs and symptom
relief.433 Bern-Klug proposes revamping our notion of mortality and
"replacing our dichotomous conceptualization of living and dying with
that of a continuum." 434 The prevalence of chronic health conditions
lacking in predictable dying trajectories require that we "expect
ambiguity and plan for it.
Two earlier incarnations of California's Right to Know End-of-Life
Options Act contained provisions similar to Oregon's Death with
Dignity Act, allowing terminally ill patients to hasten their deaths with
medical authorization. 436 Both measures were defeated in 2006 and
2007. The current, more modest measure drew the same opposition
from conservative religious groups as the previous versions.4 3 The fear
of undue influence could be why the Act requires that patients, not
doctors, must initiate end-of-life dialogues. In view of Americans'
dismal showing in the preparation of advance directives, however, it
seems obvious that patients cannot be relied upon to anticipate critical
end of life issues. Moreover, patients hesitate to broach the subject of
impending death with their physicians, many of whom would rather not
talk about it. Often, through a combination of denial, fear and lack of
clarity in patient-doctor discussions, the seriously ill "do not realize the
extent to which they are vulnerable to death until death is clearly upon
them."438 By then, patients may have missed the opportunity to benefit
from their end of life options.
G. Roles and Responsibilities
The role of palliative care has grown from symptom management to
encompassing the resolution of dying's ambiguities. Palliative care
specialists believe in the "frank acknowledgment of the inevitability of
431. Id.
432. McCue, supranote 4, at 1041.
433. Id.
434. Bern-Klug, supranote 252, at 61.
435. Id.
436. Frank D. Russo, Calfornia Assembly Approves Right to Know End-of-Life Options
Act, California Progress Report, available at http://www.californiaprogressreport.con/2008/05/
california asse 28.html.
437. Id.
436
[Vol. 20
death."4 3 9 Unlike most physicians, they have "made death their life's
work" and excel at the delivery of bad news.440 While their job is not to
hasten death or limit patient choice, they do encourage patients to think
carefully about the treatments that they might and might not want.
Proponents of assisted death stop short at recommending that
hospice and palliative care programs publicly endorse physician aid in
dying."' Doing so would frighten patients "already fearful and
vulnerable," and might prevent them from openly discussing their
distress. 442' Still, it would be interesting to know how often palliative
and hospice care professionals are asked about assisted dying and how
they respond. Having observed that aid in dying is a subject "often
blocked by physicians," Anthony L. Back wondered whether doctors
"underestimate the degree to which patients wish to talk about assisted
suicide."443 Starks and her colleagues related that, in the United States,
18-24% of primary care physicians and 46-57% of oncologists reported
"having been asked for their assistance in a patient's hastened death and
about one-quarter of them complied." 4 " In Britain, 3,000 deaths per
year occur due to voluntary and involuntary euthanasia "outside any
legal framework."4 5 In this light, statutes like ODDA are as much about
regulating an existing practice as they are about defining an entitlement.
The question is whether we can ever satisfactorily formulate rules for
the deeply private and painful decision to hasten death, or whether each
case creates its unique personal and moral standard.
Even in a more tolerant atmosphere, patients asking about hastened
death are knocking at a door that will never widely open. In a letter to
the British Medical Journal,one angry radiologist, strongly opposed to
doctors "involved with killing people," proposed erecting "thanatoria"
Still, when pushed, even
with volunteers trained as "despatchers.' 1
extremists at both ends of the assisted dying debate would have to admit
that "[t]here is no right way to die."4 Some find suffering ennobling
while others find it dehumanizing. Despite the injunction to do no harm,
439. Hartcollis, At the End, supra note 400.

440. Id.
441. Cassell, When Suffering Patients Seek Death, in QUELL & BATTIN, supra note 31, at
87.
442. Stephen Hutchinson, Legalising Euthanasia Needs Careful Thought, INVERNESS
COURIER, Dec. 23, 2008, available at http://www.unverness-courier.co.uk/news/fullstory.php/
aid/8305/Legalisingeuthanasianeeds careful thought.html.
443. Back, Doctor-PatientCommunications, in QUIL & BATTIN, supra note 31, at 112.
445. Charlemagne, The GreatEuthanasiaDebate, ECONOMIST, Apr. 4, 2009, at 56.
446. See id.
447. Bob Bury, Letter, 324 BIuT. MED. J. 848 (2002).
448. Angell, The Quality of Mercy, in QUILL & BATTIN, supranote 31, at 23.
2009]
437
"indelibly stamped into the doctor's whole being,"4 9 we must accept

the fact that, for a good many patients, death is not a harm.4 50
It is dying that frightens us. That many patients who procure lethal
prescriptions are comforted, reassured and relieved, whether or not they
ultimately use the drugs, is revelatory. 45 1 We must find ways to interpret
and make use of this finding in order to calm the fears of the seriously
ill. Unless we are willing to allow scare tactics about undue influence to
take the place of reason, it is imperative that we permit doctors to take a
more proactive role in end of life discussions. Patients do not know how
to ask, and their reticence should not condemn them to a bad death.
In a perfect world, palliative medicine will have become so
advanced as to address all forms of suffering. Even so, there will always
be a small minority of patients whose last wish is to depart this life
strictly on their own terms. What they choose to do should be of little
consequence to us as individuals. 4 52 Taking responsibility, in whatever
form, for our own end of life is what is at issue. When we peer too
closely and critically at the desires and motivations of others, we tend to
forget that dying is not something that happens only to other people. To
paraphrase Walt Kelly's eminent philosopher Pogo, we have met the
dying, and they are us. 4 5 3
77.
450. Taylor & McCann, supranote 379, at 145.
452. See RONALD DwoRKN, LIFE'S DoMINION 213 (1993).
Whether it is in someone's best interests that his life end in one way rather than
another depends on so much else that is special about him-about the shape and
character of his life and his own sense of his integrity and critical interests-that
no uniform collective decision can possibly hope to serve everyone even
decently.
Id.
453. WALT KELLY, POGO: WE HAVE MET THE ENEMY AND HE IS US (1972). Kelly was
himself rephrasing Oliver Hazard Perry's "We have met the enemy, and they are ours."
438
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Maurice A.

Deane School of Law at Hofstra University

Scholarly Commons at Hofstra Law

Stopping for Death: Re-Framing Our Perspective

Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship

STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE

II. SUFFERING: COUNTING THE WAYS

III. DECIDING WHEN ENOUGH IS ENOUGH: GOING

IV. DOCTOR-PATIENT DISCOURSES ON DYING

V. LAW, MEDICINE, AND THE ART OF DYING ...................

Law in the Service ofLimitation..................

Because I could not stopfor Death,

UNIVERSITY OF FLORIDA JOURNAL OFLAW & PUBLIC POLICY

In what direction do the deadfly off the earth?

EMILY DICKINSON 712 (Thomas H. Jackson ed., 1890).

STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OF LIFE

UNIVERSITY OF FLORIDA JOURNAL OFLA W & PUBLIC POLICY

STOPPINGFOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OFLIFE

For a relative few, despite these better efforts, there is no anodyne

UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY

that unbearable pain is the most common motivator. A combination of

I look to the time with you to keep me awake and alive.

28. PETER GABRIEL, In Your Eyes, on SO (Geffen Records 1986).

STOPPING FOR DEATH. RE-FRAMING OUR PERSPECTIVE ON THE END OF LIFE

Though physical distress like pain or shortness of breath may give

36. STEIN, supra note 35, at 54.

41. Id. at 54.

UNIVERSITY OFFLORIDA JOURNAL OFLA W & PUBLIC POLICY

When patients experience pain, it is "pain as shaped by their

Discussing hope in the context of dying seems weirdly incongruous.

53. Mount, supra note 38, at 42.

STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OF LIFE

certain but at least possible."55 Hope is manifested in a patient's resolve

Studies of morbidly ill patients have helped to clarify the role of

56. STEIN, supranote 35, at 41.

UNIVERSITY OF FLORIDA JOURNAL OF LA W & PUBLIC POLICY

"psychological stress" and create risk factors for depression.6 6 Rabkin et

68. Id. at 80.

STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OF LIFE

granting of a lethal prescription to patients "suffering from a psychiatric

OR. REV. STAT.

127.825 (2007); WASH. REV. CODE 70.245.060 (2009). The

language of both statutory sections is virtually identical.

UNIVERSITY OFFLORIDA JOURNAL OF LA W & PUBLIC POLICY

destruction" impelled by mental instability. 87 But while patients

STOPPING FOR DEATH: RE-FRAMTNG OUR PERSPECTIVE ON THE END OFLIFE

UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY

The subjectivity of suffering may generate less than predictable

Request Assisted Death].

STOPPINGFOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OFLIFE

feared aspects of cancer and a major impetus for contemplating aid in

Patients who are troubled by prospective suffering and incapacitation

Rodin et al., supranote 49, at 564.

INTERNAL MED. 234, 237 (2005).

UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY

woman, the onset of incontinence turned her quality of life

STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVE ON THE END OF LIFE

their treatment options, these patients were "simply waiting it out."l35

UNIVERSITY OFFLORIDA JOURNAL OFLAW & PUBLIC POLICY

In a statement released by the aid in dying

STOPPING FOR DEATH: RE-FRAMING OUR PERSPECTIVEON THE END OFLIFE

UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY

STOPPINGFOR DEATH RE-FRAM7NG OUR PERSPECTIVE ON THE END OFLIFE